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PROBATE LAW 



AND PRACTICE. 



BBINO 



A COMPILATION OF ALL THE STATUTES 

OF THIS STATE, 

RELATING TO PROBATE COURTS, THE ORGANIZATION AND JURISDIC- 
TION THEREOF, AND PROCEEDINGS THEREIN, THE ESTATES 
OF DECEASED PERSONS, EXECUTORS, ADMINIS- 
TRATORS, GUARDIANS AND WILLS. 

WITH 

Eotes nf KnHnal Mtti&inM, 

AND AN 

APPENDIX OF FORMS. 



By D. p. B,ELKNAP, 

COVNSBLLOB AT LAW. 



SAN FRANCISCO: 

STEBETT & BUTLER, PBgloHfEBS, 146 CLAT STREET, 

BEIWEm UOIITGOaERT ASD LEIDE3D0RFF. 

1868. 



LIBRARY OF THE 

LELAND STANFORD JR. UtHVERSITY. 

Entered according to Act of Congrass, in the year 18fi8, 
By D. P. BELKNAP, 

In the Office of the Oerk of the District C5ourt of the United States for the Northern 

District of California. 



INTRODUCTION. 



Thb preparation of the present volume, was suggested by the lack of uniformity 
observable in proceedings under the statute relative to the estates of deceased per- 
sons, and the diverse and often conflicting views of practitioners as to the proper 
forms to be employed and the correct practice to be followed — ^matters which nece^ 
sarily fell under my notice while acting as Clerk of the Probate Court in the city 
nd county of San Francisco. 

It occurred to me that a careful compilation of all the statutes of our State re- 
lating to proceedings in the Probate Courts, with the amendments thereto, accom- 
panied by a body of forms and precedents, for all such proceedings, would, even 
if imperfectly executed, constitute a work useflil to those having occasion to 
practice in these courts, and also to executors, administrators and guardians, — and 
to all, in short, connected with or interested in the management and settlement of 
the estates of deceased persons. 

In the present work, which is prepared to meet the want thus existing, will be 
found a full collection of the various statutes of this State appropriate to the sub- 
ject, with notes under the respective sections and chapters, of all decisions of our 
Supreme Court applicable, and of such other authorities within my reach as seem- 
ed in point. A large number of the latter are cases from the Texas Beports, the 
probate system of that State, in many respects, very closely resembling our own. 

The Forms contained in the Appendix are, in part, selected from the Becords of 
the Probate Court of this County, and in part drawn from the Statute for the pur- 
pose of this work ; and will be found, I think, to contain precedents for all ordi- 
nary proceedings embraced under the statutes selected. 

I have been much aided in my labors by Jas. F. Bowman, Esq., to whose assist- 
ance I am greatly indebted for an early completion of the work. 

D. P. BELKNAP. 
Qas Francisco, July 26th, 1858. 



ERRATA. 

Page 81, note to section 106, read " See Sec. 136," foresee Sec. Ul.** 

Page 81, in the last line of the note under section 106, read " See Cole ts. Robertson, noted at the 
end of chapter yi." instead of '' See CoIats. Robertson, noted ander section 131.' ' 

Form No. 8, of Appendix, second paragraph, for " Westchester, State of G&Ufomia," read ** West* 
Chester, State of New York.'' 

Form No. 77 of Appendix, to the affidavit of Robert G. Johnson, after the words "is justly due 
to this claimant" add " that no paymentu hare been made thereon, and that there are no offsets to 
the same to the knowledge of deponent." See the affidarit of N. Luning, in the preceding Form, 
No. 7«. 



TABLE OF CONTENTS. 



INTRODUCTORY CHAPTER. 

THB ORGANIZATIOH AND JURISDICTION OF THE COURTS OF THIS STATE HAVING COG- 
NIZANCE OF PROBATE PROCEEDINGS. . PAGE 17 

The Probate Courts, ...... 17 

The District Courts — their jurisdiction with reference to probate proceedings, 21 



ESTATES OP DECEASED PERSONS. 

CHAPTER I. 

JURISDICTION — ^PAGE 24. 

SHCnON. 

The Probate Court, how constituted ; the County Judge to be Probate Judge, 1 
Wills where proved, and letters testamentary where granted, . . 2, 3 



CHAPTER n. 

OF THB PROOF OF WILLS — PAGE 26. 

Wills to be delivered into the Probate Court within thirty days, etc., , 4. 6 

Renunciation or petition to be filed, . . . . 6 

Penalty for neglect, ...... 7 

Petition for probate where executor is not in possession of will, . 8 

Petition by party having interest in will, .... 9 

Where will is alleged to be in possession of third person, . . 10, 11 

Application, orders, etc., may be made out of term time, . . 12 

Time to be fixed for proving will, and notice thereof, • . 13 

Citation to heirs, co-executors, etc., ... 14, 16 

Subpoenas to subscribing witnesses, .... 16 

The hearing — who may appear and contest — appointment of attorney for 

minors, etc., ...... 17, 18 

In case will is not contested, . . . . .19 

Party contesting will must file grotmds of opposition — issues of fact how 

made up and tried, etc, • . . . .20 



Till 



TABLB OF CONTENTS. 



If will contested, all the subscribing witnesses to be examined, 

Proof of will, evidence of the execution, etc., 

Testimony so taken to be evidence in future litigation, . • 

If proved, certificate to be attached. 

The will and testimony to be filed and recorded, and to be evidence, 

Foreign wills, and wills proved in other States — ^proceedings upon, 

Will admitted to probate may be contested within one year thereafter— pro- 
ceedings for that purpose, .... 80-86 

If not contested within one year the probate conclusive, except as to in- 
fants, etc., .... r • 86 

Lost or destroyed will, proof <tf, etc. . . . 87-40 



nonov, 
21 
22 
28 
24 

26,26 
27, 28, 29 



CHAPTER m. 

LETTEBS TBSTAIONTABT AND OF ADMIMI8TRATI0N, AND BONDS OF XXBCUT0B8 AND 

ADMINI8TBAT0B8 — PAGE 35. 

To whom letters to issue upon probate of will, ... 41 
Who incompetent to serve as executors ; when person named incompetent, 

letters of administration with the will annexed to issue, . 42 
Objections to the granting letters to the persons named as executors may 

De Hfeci, e«c.a •*•... ^** 

Bfiect of marriage of executrix, . . . . .44 

Executor of executor not to administer, etc., ... 46 

When minor is named executor, . .. . .46 

When all the executors named are not appointed, ... 47 

Authority of administrators with the will annexed, . . .48 

Letters must be signed by the clerk, and be under the seal of the court, 49 

Form of letters testamentary and of administration, . 60, 51 
To what persons administration shall be granted, and the order in which 

they shall be entitled^ . . . • . 6Z 

Surviving partner, in no case to administer, ... 52 

In case of applicants equally entitled, . . . 68, 54 

What persons not entitled to administer, ... 65 

Marriage of administratrix, efibct of, . • . .66 

If person entitled to administration a minor, ... 67 

Application for letters how made, . . . • .68 

Letters only granted a regular or special term of the court, • 69 

Notice of application for letters, time of, etc., . • .60 

Application may be contested, , • . . 61 

The hearing, . . . . . . .62 

The minutes of the court conclusive as to notice^ ... 68 

If pefson entitled to administration fail to i^^ear and claim letten^ . 61 

Death of intestate to be proved before grant of letters, • . 66 

dnuit to persons not entitled at request of person entitled, • • 66 

Fetition for revocation of letters, and proceedings thereon, » 67«-7<>' 

Form of letters of administration, . . « .71 

Oath to ber taken by adminiilwitor-^-bondi to be given^ etc, . 72«75 

^wtiflcation of sureties — sureties for portions, . . .r 76 
Citation and exan^ination of sureties,, etc., and proceedings tf secnril^ not 

given^ . r . . • r 76A, 76-8^ 



TABLE OF CONTBNTS. IZ 

ncnoir. 
Bond dispensed with, if so provided in will, ... 77 

When persons interested, may apply for Airther security, . . 78 

Proceedings upon such application, etc. » . . . • 7^-82 

Probate Jadge to require fUrther security without application, . . 83 

Release of sureties ; application therefor, and proceedings thereupon, 84-86 

Certain applications may be heard and determined out of term time ; the 

orders made therein to be entered upon the minutes, . . 8T 

Spboial Adhinistbatob — in what cases appointed, . . .88 

Appointment when and how made— order shall specify the powers granted, 89 
Who to be appointed — appointment not appealable, . .00 

Bond and duties of special administrator — when his powers to cease — ^ac- 
counting by, ...... 91-96 

Other cases in which special administrator may be appointed, . 96 

In case of some or all of the executors or administrators becoming incom- 
petent to act, ...... 96-97 

If will proved after granting letters of administration, . . 98 

Powers of executor, in such case, . . . . .99 

Power of executor or administrator to resign, . . . 100 

Acts of executor valid until his power is revoked, . . . 101 

Transcript from the minutes to be evidence, . . . 10:a 

When Probate Judge not to act. etc., • . . 103, 104 



CHAPTER IT. 

THB INVBNTOBY AKU COIiLECTION OF THK SFFBCTS OF DBCBASED PEB90K8. 

Invbktobt — Appraisers, appraisement^ etc., . . . 105-106 

Where executor is indebted to testator, ' • . . . 109 

Discharge of debt in will— effect of, . • . . 110 

Inventory must be signed and verified, etc., . . . .111 

If executor neglect or refuse to return inventory, . . 112 

Further inventory, . . . . . .113 

Executor, etc., to have possession of property, . . . 114 

If personal estate insufficient to pay debts, etc., real estate to be sold, . 116 
Action may be brought by executor for double the value of property em- 
bezzled, etc., before letters granted, .... 116 

Complaint by executor, administrator, heir, etc., against person suspected 
of having converted property of deceased, or person entrusted with 
property of estate, and proceedings thereon, . . 117-119 

CHAPTER V. 

PB0VI8I0N FOB 8UPP0BT OF FAMILT. 

Provision for widow and minor children — ^property set apart, etc., 126, 121 

If property exempt by law insufficient, allowance to be made out of the 

estate, ••..«.« i2z 

fiupolvent estate to be settled within one year, . . . 122 

Allowance to widow, etc., to have preference, • . . 1^ 

Specification of property to* be set apart — ^the homestead, . . 124 

To whom propeity set apart to belong, .... 126' 

If whole estate does not exceed $600, .... 126 

Id case widow has a maintenance of her own, • . 127 



TABLE OF OONTBNTS. 



CHAPTER VL 



OF CLAIMS AQAINST E8TATB. 



ncncni* 
128,129 

lao 

131 

181 A 

132 



Notice to creditors to present claims — ^publication of notice, etc., 
Claims, when barred, ..... 

Claims to be supported by oath, .... 

Claim agrainst estate by Probate Judge, .... 

Allowance or rejection to be endorsed. 

Effect of allowance, ...... 138 

Action upon claim if rejected, ..... 184 

Claim barred by statute of limitations shall not be allowed, . 136 

Action not maintainable till claim has been presented, . . 136 
Time during which there shall be a yacancy in the administration not to be 

included in limitations. ..... 137 

In case of action pending against testator or intestate at time of his death, 

claim to be presented, . . . . . . 138 

Claim allowed in part — refusal to accept, . . . 189 

Effect of judgment against executor, .... 140 

When judgment has been rendered against testator, etc., in his life- time, 141 
Agreement to refer claim, and proceedings thereon, . . 142, 148 

Liability of executor, etc., for costs, .... 144 

Claim by executor against estate, : . . • ' : 146 

If executor, etc. , neglect to give notice to creditors, his letters to be revoked, 146 

Executor, etc., to return a statement of claims, . . . 147 



CHAPTER VIL 



SALES OF PROPEBTT BT BXE0UT0B8 OB ADMINISTBAT0B8. 

Sale to be under order of the court, ..... 148 

Petition for sale, ...... 149 

Sale of perishable property, and of personal property for the payment of 

debts, ....... 150 

What articles first sold— bequeathed articles, . . . 151 

Sale how made, etc., ...... 152 

Kotice of sale, ...... 153 

Sale of real estate — ^petition for, and proceedings thereupon, . 164-165 

Notice of sale of real estate, . . . . . 166 

Time and place of sale, ...... 167 

If sale be on credit, . . . • . . 168 

Executor, etc., to make return of sale, . . . . 169 

Any person Interested may file ol^jections, .... 170 

Confirmation of sale — effect of, order to be recorded, . . 171 

Proof of notice of sale to be required by court, before confirmation, etc., . 173 
Adjournment of sale, and notice thereof, .... 174, 175 

Sale of real estate to pay legacy, ..... 176 

Provisions of will to be followed as to estate to be appropriated to payment 

of debts, etc., ...... 177 

When sale may be made without order of the court, . . . 178 

If provision made by will insufficient, .... 179 



4siAin or mmam. si 

WKJOOS, 

Sstate beqaeathed, ttMe -^Ibr -|»7iittiit of €<ibt8— contrRmllon «vKmg 'lega- 
tees, etc., . . . . . . 180, 181 

'Sale of iDterest of deceased person in tands— ^bonds by pnrohaser, etc., 182-184 

Assignmentofcontract, and effect thereof, . . . 185 

Where land sold subject to lien, etc., . . . . .186 

Expenses of *8ale to be first paid out of proceeds, ... 187 

'3(t8Coadact in sale— ftandalent sales, .... 188, 189 

liimitation of action by heir, . - ... 190 

j:*imitation not to apply .to minors, «tc., . . . ,191 

JExecutor, etc., to return account of sales—how enforced, . . 192 

iEzecutor, etc., shidl not purchase property of estate, . . . 198 



CHAPTER Vni. 

^ TH« P0WBB8 AND DTKTIBS OP f»IE mMm^SOU AMD 4i>Ja9W!CIWk9<»R, JkXm 9P 

THE MANAOEMVItT 'OF THB XSTiffS. 

B:recutor, etc., to take possession of the estate of decease^) • .• 194 

Actions by and against executors, etc., .... 19d-19i7 

Where decease^ pofisessed an interest In a partpi^rship, ... . 198 

Action on bond of executor, etc., . .... 199 

What executors to join o^- be joined as paj^es to fictiQ^ .. • jZQQ 

Compounding debts, ....... 2Q1 

Recove^.of property fraudulei^tly ^ig^sed of by test^tpr—duity of execu- 
tors to bring iactlon, etc., ... . . . iSO^, 203 

JOllsposition of estate so recovered^ ,• • . . i$p,4 



CHAPTER IX. 

CONTBTAKGE OF BXAL B8TATK BT BXECUTORS AND ADMINI8TKAT0BS. 

Executor, etc., may be directed to^onrey reeA estate pursuant to contract of 

his testator or i9testate9 .... . . 205 

Petition for such conveyance, notice to be given, . , . 206 

Parties interested may file objeettons, . . . ^ -207 

.Conveyance may 'be decreed, .... t06 

Appeal fh>m decree, etc., . . . . * 209 

When petitioner may proceed in district court, . . « 210 

JBffect of conveyance, ...... 211 

'Decree for conveyance when recorded, gives right of po s s ossio n, • 212 

Decree may be enforced by process, . . . . « 21*3 

Proceedings in. case of the death of a party -entilM io eoBveyaiieei $ 214 



CHAPTER X. 

ACCOUNTS TO BB BBNDBBED BT BXECUTOBS AND ADHINISTRATOBS. 

Xiiability of executor, etc., upon promise to pa^ iMt«f MatortiiQir iBMAte, 

for income of estate, ttnc«lMedidi»)>l0»atQ*, • .• * .ZliMfi 

2 






TABLB OF OOlVmiS. 



Expenses and legal fees to be allowed, unless will prorldaB compensa- 
tion, etc. ■ . . . . . . 

Executor, etc., shall not purchase claim against estate which he represents. 

Compensation of executors and administrators, 

Must render account at the third term after their appoiutment, 

How enforced, . . 

Petition for account by party interested, and proceedings thereon, 

Full account to be rendered at expiration of one year ft-om his appointment^ 

May be cited to account after the expiration of hi« authority, 

Letters to be revoked, if account not rendered, 

Executor, etc., to provide vouchers, and may be examined on oath, 

Vouchers when dispensed with, .... 

Notice of settlement of account, . « . . 

Exceptions to the account, ..... 

Minors to be represented, ..... 

A^oumments — auditors to be appointed, 

Allowance of account, against whom conclusive. 

Account not to be allowed till notice proved. 

Order in which debts of the estate shall be paid. 

Extent of preference given to mortgage, .... 

If estate insufficient, . . . 

Payments to be made as soon as executor has fiinds — not obliged to pay any 
other debt or any legacy, until order of the court, . 

Order for the payment of debts, upon settlement of account, 

Provision for disputed and contingent claims^ . 

Executor personally liable for debts, after decree for payment thereof; also 
liable on his bond— execution may issue for amount specified in decree, 

Claims not included in order for payment of debts, 

Order for payment of legacies, ... 

Final account of executor or administrator, . 

The rendering of account — ^how enforced, 



219 
220 
221 
222 
223 
224-227 
228 
229 
230 
231 
232 
233 
234 
235 
236 
237 
238 
239 
240 
241 

242 
243 

244 

245 
246 
247 
248 
249 



CHAPTER XI. 



PABTmOH AND DI8TBIBUTIOX OW EBTATB8. 

Petition by heir or devisee for his portion of estate, • . 260 

Notice of application, . . ... . . 251 

Executor may oppose application, .... 252 

Bond to be given by petitioner, . . . . • 253 

Decree may order whole, or part of share to be paid, . 25 

Where partition necessary, ..... 255 

Costs of proceeding to be paid by applicant^ • . . 256 
Proceedings uppn bond of petitioner, where payment of whole or part be- 
comes necessary, ..... 257 

Distribution of residue of estate, if any, .... 258 

Form of decree of distribution — ^the respective proportions of persons en- 
titled, must be specified, ..... 259 

On whose application decree may be made-— what notice necessary, 260 

Partition of undivided estate, ..... 261 

Where real estateis in difierent counties, . 262 

Who may apply for petition— -what notice to be giveOi . 268 



TABLB OF GONTBSTS. 



Proceedings, etc., on such t>artition, 

'When estate nuty be sold, and proceeds divided, 

How dirided, when in common with the estate of third persons, 

Gnardians for minors to be appointed before making: partition, . 

Commissioners must report— court may set report aside, etc.; report when 

finally accepted, to be recorded, etc., 
When not necessary to appoint commissioners to make partition, 
Questions as to advancements, .... 

Court may appoint agent to take possession for absentees, 
Agent to give bond, ..... 

If estate unclaimed for one year, . . 

Liability of agent on his bond — ^suit thereon, 
Certificate to claimant, .... 

Decree discharged— executor, etc., 
Letters of administration may issue after such decree, 



xiii 

SBcnojr, 

264-267 
268 
269 
270 

271 
272 
273 
274 
276 
276 
277 
278 
279 
280 



CHAPTER XIL 

BEkOVAL OF BXBCUTORS AND ABMINISTIUTOBS IN CERTAIN CASES. 

The powers of executors, etc., may be suspended, . . . 281 

Special administrator may be appointed during suspension, . 282 

Executor to have notice of his suspension, and to be cited to appear, . 288 

Any party interested may appear on hearing, . . . 284 

Notice by publication may be given to executor or administrator, who has 

absconded, etc., or removed, -. . . . 285 

Court may compel attendance of executor or administrator by attachment, 

and may compel him to answer questions, etc., 286 



CHAPTER XIIL 



MISCELLANEOUS FBOYISIOKB. 

All orders, decrees, etc., to be entered, . ' . , • 287 

Personal notice— how given— citation, contents of, . . 288 

Citation how served, . . . . . . 289 

Time for service and return, ..... 290 

Clerk of Probate Court may administer oaths, issue citations, etc., . 291 

Writs and process to be signed and sealed, . . . 292 
The practice in the District Court to be applicable to proceedings in the 

Probate Court, . . . . . .298 

. In certain cases, issues of fact, certified for trial to the District Court, 294 
Mode of application to have issue of fact certified to District Court — ^man- 

4 ner of certifying issues, etc., .... 295 

Issues, how tried in District Court, .... 296 

Appeal to Supbbmb Coubt — in what cases, . . . 297 
. i^>peal. how taken and perfected — ^within what time — ^undertaking when 

dispensed with — suit on undertaking after appeal determined, • 298 

. Statement of case to be annexed to record, . . • 298 
.Provisions of the Practice Act made applicable to appeals from the Probate 

. . Court, . ... . . . . . ,800 



.Ckiikiof Prol:!Rte Court to transipit papers, etc., nwmmfj^^ jlri>l.oC Iwnie, 
to District Opart— aftor trial tib^ olork oi 4be J>itArj^Qwn iko jqiiJm 
return to Probate CoHTt, . ^ .. .• . 80JI 

<!.^ts to be paid by party^ Ar .ouji lOC !««(•(», iM»4 ^9K^i^(i#n j^l^er^^, .• 11$^ 



CHAPTER 

'BvBi.10 ADMI5ISTBAT0B — ^hls electioo, and term of office, MS 4 
'The bond to be executed by him — ^its condition and laiKioiint-^isoMtieii of 

Probate Judge aa to amount, .... 802 S 

Duties and oompensation of, • . . . . . 902 
Not to be interested in certain expenditures, nor 40 be aaeoelatod in ImuI- 

ness with any person so interested, <etc., • • 8021^ 
To make semi-annual return — ^return to be published or posted — ^moneys 

unclaimed — how disposed of, . . . . 802 E 
When to settle with county cler^f:^ .... 802 F 
Statements under oath as to amount of money received, etc., * 802 
Penalty for failing •to^makefiuch statement, • • 802 H 
penalty for misdemeanor in office^ .. . • . ,808 
Duty of person in whose houafs stranger ahikll difc^ • • ^ ^^ 
Duty of public. administratpr. thereupon, ^ ^ . 905 
JI letters regularly granted to any other J^eff on, j>uhUc ^miuiatm^ tp de- 
liver up the propjorty, otc^, ,..•*.• ^ 
•Officers to give notice of waste, . .. j, * 807 
Actions.AH* prqpierty of 4«oedeD^, .. ^ ^ ^ Sf^ 
Complaint by public administrator for ismb^jEi^Ul^g prppt^rj^^ letf^ • 809 
Citation, etc., how enforced, . . • • • 810 
Public administrator may be ordered to account, etc., • • 811 
To render a yearly account, .... 812 
Former act, " to regulate the settlement of the estates of deceased per- 
sons,'' repealed, . ^ * • • • 813 
.Ojbher issues of fact, how disposed of, • . * • 814 
Ppmpensation of public admini^ttnitor, • . • . 814 A 



To whom properly of a person dying intestate shall descend and be dte* 

tributed, .•••••• 8i6 

How descent affected in case of illegitimacy, . . 8141,817 

Issues of marriages deemed null in law, or by divorce declared' legitimate, ^16 
Degrees of kindred computed according to the civil law, . . iM 

Inheritance by those of half-blood, . . . . S18^ 

Advancements made by intestate in his life time to any heir or deaoendant, 81MI88 
IiAeritance 1>y husband and wife ftom each other, . . • 824 

Inlieritance " by right of representation " explained, . . 886 

Inheritance by posthumous children, .... 825 

Inheritance by aliens, and disposition of their interest when uncalled for, 826 



TABLE OF CONTBNTf . XT 



CHAPTER XVI. 

BSCHIATUO B8TATBS. 

sicnoir* 

When property escheats to the State, . • . . 827 

Proceedings by attorney-general to secure property escheated, 328, 329, 8:iO 

Receiver of rents and profits may be appointed, . . . 3^2 

When owner of escheated property may appear and make claim. . 3'il 

An informer entitled to five per cent on the amount recovered by the Stale, 3>i<i 

Moneys accruing from escheats to be paid into the treasury, and converted 

into bonds to the credit of the " school fund,'' . . . 3^i6 



CHAPTER XVIT. 

THE APPOINTMENT AND DUTIES OF QUARDIANS. 

Probate Judge to appomt guardians for minors residing or having estate in 

his county , . ; . . . . . 336- 

Who to nominate guardian, ..... 337 

When judge may nominate .... 337, 338 

Minor at fourteen may change guardian, . . . 33^ 

Father or mother entitled to guardianship, .... 340 

When guardian has custody of ward, .... 341 

Authority of guardian, ...... 342 

Bond of guardian — conditions, .... 343 

Certain statutes made applicable to guardians, . . . 343 A 

Support of minor for his own income, .... 344 

Testamentary guardian, .... . . 345 

Gruardian or next friend for purposes of suit at law, . « 34S 

Insane or other incompetent persons may be produced before Probate Judge, 347 
Guardian for such insane or incompetent person appointed, . . 848 

Powers and duties of such guardian, .... 849 

Debts of ward to be paid out of his property, . . • 360 

Duty of guardian in collecting and managing estate of ward, . 851, 352 

Guardian may join in partition, .... 853 

Guardian to make and return inventory and appraisement — how to account 

for and dispose of personal estate, .... 864 

Real estate to be sold when income of ward is insufficient| . . 856 

Also when investment would be beneficial, . . - . 856 

Disposition of proceeds of sale, .... 857, 858 

Petition for an order of sale, ..... 859 

Order to show cause therefor, ..... 860 

861 

862 to 864 

865 

866 

. * . 867 

868 
369 
870 



Mode of service of such order, 
Pi^eedings upon the hearing. 
Order of sale may be granted, . 
Bond to be given by guardian before the sale, 
Notice of proceedings on, and return of sale, • 

Sruch order of sale in force for one year. 
Limitation of action to recover estate sold, 
Accounting by guardian, . 
Investment of proceeds of sales, • . . . 871 

2a 



XTl 



TABLE OF CONTENTS. 



Removal or resignation of guardian. 

Termination of guardianship, . 

Sureties on bond may be released and new bond required, 

Bond to be filed — who may sue on, 

Limitation of action on bond, . . , 

Complaint of embezzling, etc., property of ward, . 

Appointment of guardian for minor not resident in the State, 

Powers, bond, duties, and liability of such guardian, 

Expenses and compensation of guardians, 

Joint guardian — ^bond and liability of, 

Account rendered by joint guardians. 

Terms and securities on sales of real estate of wards, 

Property of ward may be removed from the State, 

Proceedings to obtain order for such removal, 

Effect of such order of removal. 

Minor may engage as apprentice, etc.. 

Consent of proper person to be had in writing, 

When executors may apprentice a minor, 

Supervisors and town officers may bind out child. 

Age of child to be ascertained and inserted in the indentures 

Money contracted for to be inserted in same, 

Indentures to provide for schooling. 

Counterpart of indentures to be filed in public office, 

Alien minor may make like contract, 

Such contract must be acknowledged, 

Indians not included in this act. 

Causes for annulling indentures, . : 

Proceedings on annulling indentures. 

Punishment for fleeing service, 

Pimishment for harboring, etc., runaway. 

Guardian of insane persons may contract as to their lands in 

Legal age of minority, .... 





nonoir* 


. 


872 


. I 


873 


* 


874 


• 


875 


. 


376 


* 


877 


t • 


878 


• 


. 379 to 881 


• 


882 


• 1 


888 


• 


884 


• t 


886 


m 


886 


9 t 


887 


• 


888 


• 4 


889 


• 


890, 891 


• i 


892 


• 


898, 894 


1, 


895 


• 


896 


• 


397 


• 


898 


• 1 


899 


. 


400 


• I 


401 


. 


402 


> • 


403 


. 


404 


• • 


405 


certain ca 


ises, 406 


• 


407 



CHAPTER XVIIL 



WILLS. 

Who may make will — property not disposed of by will, 

Married woman may dispose of her property by will, . 

Wills, except nuncupative wills, to be in writing, signed and attested. 

Competency of subscribing witnesses, 

Gifts of subscribing witnesses void— creditor a competent witness. 

Witness who is devisee, etc , . 

Nuncupative wills, ..... 

Proof of nuncupative wills, .... 

Bevocation of wills — when implied by law, 

Antecedent will not revived by revocation of subsequent will. 

Effect of marriage, as a revocation, 

Covenant to convey property devised, not a revocation of the devise, 

Mortgage not a revocation of will, 

Children bom after making of will, 

Children, or issue of children of testator unprovided for by his will. 



408 
409 
410 
411 
412 
413 
414 

415, 416 
417 
418 

419, 420 
421 
422 
423 
424 



TABLE OP CONTENTS. XVll 

SECTION. 

Share of child born after the making of a will, etc., out of which part of 

the estate to be paid, ..... 425 

Advancement during life-time of testator, . . . ; 426 
Death of devisee, being relation of testator in the life-time of testator, 

leaving lineal descendants, ..... 427 

Devisees of land — how construed, .... 428 

Property acquired after the making of will to pass thereby. . . 429 
Wills made out of this State, must be executed according to the provisions 

of this act, to be valid in this State, .... 430 

The term " will," includes codicils, . . . . 431 



CHAPTER XIX. 

DISCONNECTED STATTJTOBY PBO VISIONS RELATING TO THE ESTATES OF DECEASED 

PEB80NS, ETC. 

Exemption of property of widows and orphans from taxation, . . 432 

Undivided property of deceased persons — taxes on, etc., , , 433 

Redemption by minors of lands sold for taxes, . . . 434 
Probate Judge to direct payment of taxes — no decree for distribution to be 

made until taxes paid, . . . . . 435 

Tenancy by courtesy, and dower, not allowed. . . . 436 

Disposition of community property, upon the death of husband or wife, 437 

Marriage contract by minor. ..... 438 

No marriage contract to alter the order of descent, etc., . . 439 

Married woman may insure the life of her husband, etc., . . 440 

The insurance may be made payable to her children, . . 441 
INDEX, ...... Page 153 



TERMS OF PROBATE COURTS, 

IN THE DIFFERENT COUNTIES OF THE STATE. 



Alameda. 
Butte . . . 



Calaveras , 
Colusi...i 
Humboldt 
Merced.. . 
Monterey 
Napa 



San Bernardino . . 
San Francisco . . . 

San Luis Obispo. . 
San Mateo 



Santa Barbara.. 
Santa Clara. • . . 
Santa Cruz 



Sierra. . 
Siskiyou 



Solano . 
Sonoma 
Tehama 



Tuolumne 

Yolo.. 



3d Mondays of January, March, May, July, 

September and November. 
4th Monday in February and May ; Third 

Monday in August, and Second Monday in 

December. 
1st Monday January, April, July ; 3d Monday 

October. 
1st Monday January, March, May, July, Sep- 
tember and November. 
2nd Monday February, April, June, August, 

October and December. 
1st Monday January, March, May, July, Sept* 

and November. 
1st Monday February, April, June, August, 

October and December. 
3d Monday March and July ; and 2nd Monday 

of November. 
4th Monday January, April, July and October. 
3d Monday January, March, May, July, Sept. 

and November. 
4th Monday January, April, July and Oct. 
Tuesday after County Court ; County Court, 

1st Monday March, July and November. 
4th Moaday January, April, July and Oct. 
4th Monday February, June and October. 
1st Monday February, April, June, August, 

October and December. 
1st Monday May, August, October and Dec. 
1st Monday January, April, October ; 3d. 

Monday July. 
4th Monday January, April, July and October. 
1st Monday January, April, July and October. 
1st Monday February, April, June, August, 

October and December. 
1st Monday February, June and October. 
1st Monday January, March, July, September 

and November. 



In all the counties not named above, the regular terms are held 
on the fourth Monday of each month. See p. 18, post. 



ORGANIZATION AND JURISDICTION 



OF THS 



PIIOB^TE OOTJIITS 



OF CALIFORNIA. 



The Constitutional and Statutory provisions relating to the organi- 
zation and powers of the Courts of this State, having cognizance of 
Probate proceedings, are as follows. 

I.— THE PROBATE COURT. 

Section 8 of Article VI. of the Constitution provides that : 
" There shall be elected in each of the organized counties of this 
^tate, one county judge, who shall hold his oflSce for four years. He 

shall hold the county court and perform the duties of Surrogate, or 

probate judge." 

Chapter VII. of the Act of May 19, 1853, " concerning courts of 

justice and judicial ofScers," provides as follows : 

THE PROBATE COURT. 

§ 61. There shall be in each county, a probate court with the juris- 
diction conferred by this chapter. (Embracing sections 61 to 65 inclu- 
sive). 

^ 62. The county judge of each county shall be the judge of the 
probate court. 

§ 63. The probate court shall have power to open and receive the 
proof of last wills and testaments, and to admit them to probate ; to 
grant letters testamentary, of administration, and of guardianship, 
and to revoke the same for cause shown according to law ; to com- 
pel executors, administrators and guardians, to render an account 
when required, or at the period fixed by law ; to order the sale of 
property of estates or belonging to minors ; to order the payment of 

debts due by estates ; to order and regulate all partitions of proper- 

3 



18 THE PROBATE COURT. 

ty or estate of deceased persons ; to compel the attendance of wit- 
nesses ; to appoint appraisers or arbitrators ; to compel the produc- 
tion of title deeds, papers, or other property of an estate, or of a mi- 
nor ; (a) and to make such other orders, as may be necessary and pro- 
per, in the exercise of the jurisdiction, conferred upon the probate 
court. 

^ 64. The county judge shall have power in vacation, to appoint 
appraisers, to receive inventories and accounts to be filed in his 
court ; to suspend the powers of executors, administrators, or guar- 
dians in the cases allowed by law ; to grant special letters of admin- 
istration or guardianship ; to approve claims and bonds, and to di- 
rect the issuance from this court, of all writs and process necessary in 
the exercise of his powers as probate judge. 

§ 65. The county judge of the county of San Francisco, shall hold 
a probate court, at the city of San Francisco, on the third Monday of 
January, March, May, July, September and November ; provided, that 
each term of said court shall continue until the commencement of the 
next term, unless all the business of the court be sooner disposed of. 
In the other counties of the State, the county judge shall hold a pro- 
bate court on the fourth Monday of each month. 

By the Act of March 27, 1858 (stat. of 1858, p. 95), entitled " An 
Act to give to the proceedings of courts of probate, the same effect 
as courts of general jurisdictioa,'' it is provided as fallows : 

§ 1. That th'e proceedings of the courts of probate, within the ju- 
risdiction conferred on them by the laws, shall be construed in the 
same manner and with like intendments, as the proceedings of courts 
of general jurisdiction ; and that the records, orders, judgments, and 
decrees, of the said probate courts, shall have accorded to them, like 
force and eflfect, and legal presumptions, as the records, orders, judg- 
ments, and decrees of the district courts. 

§ 2. This act shall take effect only upon proceedings had or taken 
after its passage. 

The foregoing sections, together with those contained in the pro- 
bate act, comprise all the statutory provisions defining and specifying 
the jurisdiction and powers of the probate courts of this State; and to 
>this statutory jurisdiction, they are strictly limited. The Supreme 
Court has repeatedly held them to be inferior courts, of special and 
limited jurisdiction, incapable of exercising any powers, or adminis- 
tering any remedies, other than those expressly conferred, and pre- 
scribed by statute. 

(a) Oompase Section 117 of the IProbste Act, post. 



THE DISTRICT COURTS. 19 

The act of 1868, though it does not at all enlarge the jurisdiction 
of the probate courts, essentially modifies the strictness of the doc- 
trine laid down in some of the authorities, in reference to the effect 
of their proceedings, and their powers in the exercise of their ac- 
knowledged jurisdiction, (a) 

II.— THE DISTRICT COURTS. 

THEIR JURISDICTION WITH REFERENCE TO PROBATE PROCEEDINGS. 

Section 6, of Article VI. of the Constitution, provides that — 
" The district courts shall have original jurisdiction in law and 
equity, in all civil cases, where the amount in dispute exceeds two 
hundred dollars, exclusive of interest, and in all issues of fact, joined; 
in the probate courts, their jurisdiction shall be unlimited." 

(a) T%e Jurisdiction and General Powers of Probate Courts. 

In New York, and in some of the other States, certain incidental and constructive powers 
have been claimed for Surrogates' courts, as essential to the due exercise of the jurisdiction 
expressly conferred by law, and as being to that extent, inherent in all courts. A section 
of the New York Revised Statutes, as originally enacted, declared that " no Surrogate 
shaUj under pretext of incidental power or constructive authority, exercise any jurisdic- 
tion whatever f not expressly gi/ven by some stcUute of this State.^^ (2 R. S. Ist ed., p. 221.) 
This restrictive clause was subsequently repealed (Laws of N. Y., 1837, p. 536), and since 
such repeal, the exercise of powers not enumerated in the statute, has been repeatedly sus- 
tained by the appellate courts of that State. Thus it has been held, that the Surrogate 
had power to vacate or set aside an irregular or ex parte order made by him, instead of 
putting the party to his appeal ; to open a decree taken by default \ to enter an order 
nunc pro tunCf if by inadvertence it was not entered at the proper time, and the like. 
(See 9 Paige, 128 ; 10 Paige, 316 ; 1 Bradford's R., 283 ; 1 Barb. Ch. R.', 452, and the cases 
noted infra.) 

The following cases, most of them decided in the Supreme Court of this State, bear 
more or less directly upon this question, in regard to the general powers and authority 
of Probate Courts, where not expressly marked out and defined by statute. 

The Probate Court is an inferior court, and cannot take jurisdiction or administer rem- 
edies, other than those given in, and in the manner prescribed by, statute. Grimes' Estate 
V. Norris, 6 Cal. R., 621. 

Probate Courts are courts of inferior and limited jurisdiction, and in pleading their 
judgments it is necessary to set out the facts which gave jurisdiction. Smith v. Andrews, 
6 Cal. R., 652. 

Proceedings in Probate Courts are summary and special, and must be in strict conlbrm- 
ity with the law. Opinion, in Beckett v. Selover, 7 Cal. R., January Term. 

The Probate Court is a court of special and limited jurisdiction. Though a settlement 
in the probate court is a final settlement, a complainant no party to it, may treat it as a 
nullity, and invoke the equitable powers of the district court, and compel the administra- 
tor to a full account. Clark v. Perry, 5 Cal. R., 58. 

The District Courts of this State have the same control over the estates and persons of 
minors that the Courts of Chancery in England possess. This jurisdiction is conferred by 
the Constitution (art. vi, section 6), and cannot be divested by any legislative enactment. 
And the claim of exclusive, original jurisdiction in courts of probate, over the same sutgect 
matter is unfounded. Wilson et al. v. Roach et al. 4 Cal. 362. 

The Probate Court has jurisdiction to try and determine issues of fact arising in pro- 
ceedings before it. And the issues of fact joined in the probate court, which are sent to. 
the district court for trial, are of that class upon which the probate judge is unwilling to 
pass his judgment, or where from great conflict of evidence a reasonable doubt must exist 
in his mind, as to which side has the right. Keller v. Franklin, 5 Cal. R. 432. 

The allegations in a petition for administration are not sufficient to give the court juris- 
diction, unless proper notice be given to bring the parties before the court. But if proper 



20 THE DISTRICT COUBTB. 

This section has been the subject of judicial construction by the 
Supreme Court. In the case of Reed et d. v McCormickj 4 Cal. R., 
842, the court say«=« : 

" The sixth section of Article VI. of the Constitution, which pro- 
vides that in all issues of fact, joined in the probate courts, the juris- 
diction of the district courts shall be unlimited, does not give the 
district courts appellate jurisdiction from the probate courts. The 
word " unlimited," qualifies the amount in value, and not the term 
" original." " Issues of fact," etc., refer to issues to be tried." 

And see Wilson et al. v Roach et d. 4 Cal. R., 362. Also, the opin- 
ion in Beckett v Selover, 7, Cal. R., January term. 

Section 19 of the Judicial Act (stat. 1853, p. 287) provides that, in 
all issues of fact joined in the probate courts, the jurisdiction of the 
district courts shall be unlimited. 

The language of this section, follows that of section 6, of article 



notice w&Btnfact given, and the proof wos merely defective, it would seem competent for 
the court to receive another affidavit of the clerk, and file the same nunc pro tunc. Beck- 
ett et al. V. Selover, 7 Cal. R., January Term. 

The Probate Court has no power to direct that the portion of an estate of an intestate 
originally allotted to one of the heirs at law, a non-resident heir, shall be distributed 
among the other heirs, if the non-resident heir shall fail to appear and claim it within a 
year. The money should be paid into the State Treasury until claimed by the owner or 
his representatives. Pyatt v. Brockman, 6 Cal. R. 418. 

The power of the probate judge, to remove in his discretion an administrator for any 
of the causes named in the statute, will not be interfered with by the appellate court, 
unless it should be clearly shown that there has been gross abuse of discretion. Deck's 
Estate V. Gherke, 6 Cal. R. 666. 

Letters of guardianship of a lunatic issued by a probate court cannot be questioned 
in a collateral proceeding. Warner et al. v. Wilson, 4 Cal. R., 810. 

And generally, when a probate court, having acquired jurisdiction, has decided any 
point legitimately before it, its decision cannot be called in question except by proceed- 
ings in that court. The plaintiff having been pronounced non compos mentis by the 
probate court, and a guardian appointed, the plaintiff afterward transacted some busi- 
ness, and the validity of the transaction being called in question, defendant offered to 
prove, as matter of fact, that plaintiff was of sound mind- at the time. Ileldf that the 
decision could not be questioned in that manner. Leonard v, Leonard 14 Pickering, 283. 

An administrator having resigned on settlement, the judge of the probate court found 
him indebted to the estate jn the sum of $16,000, and ordered him to pay it into court, 
and upon his refusal the heirs brought suit on his administration bond. Held, that there 
was no law making the probate judge a fiscal agent, and the decree for the payment of 
money into court was coram nonjudice. Wilson et al. v. Hernandez, 6 Cal. R. 437. 

A grant of administration originally void, and not merely voidahle, acquires no validity 
from an acquiescence of twenty years. Holyoke v. Haskins, 6 Pickering, 20. and see 
Ux parte Barker, noted under section 2 of the Probate Act. post. 

Unless the court has jurisdiction the proceedings, however regular, cannot be sustained 
even when called in question coUaieraUy, as in a case where administration is granted 
by a probate court of the wrong county. Beckett et al. v. Selover, 7 Cal. R., January 
Term. 

Surrogates* courts proceed according to the course of the common and ecclesiastical 
law, as modified by statutory regulations. Where jurisdiction is given by statute, the 
mode of exercising it, in cases not specially provided for, must be regulated by the court 
in the exercise of a sound discretion, according to circumstances. Campbell v. Logan, 
2 Bradford's R. 90. 



PBAGTIGE m PBOBATB PBOC£EDINGS. 21 

VI, of the constitution, and the construction given to the latter, in 
the case of Reed v. McCormick, above cited, is equally applicable to it. 

Section 21, of the same act, provides that the appellate jurisdic- 
tion of the district courts shall extend to the hearing upon appeal, 
" an order or judgment of the probate court in the cases prescribed 
by statute." 

Sections 363 to 365 inclusive, of the Practice Act, prescribe the 
cases in which appeals may be taken from a probate court to a dis- 
trict court, the time within which such appeal must be taken, etc. 

But the above sections of the Judicial Act, and of the Practice 
Act, have been declared unconstitutional, so far as they undertake to 
confer appellate jurisdiction upon the district courts, (a) 

It has also been held, that, inasmuch as the power to try de novo, 
issues which have been tried and decided, necessarily includes the 
power to reverse or modify such decisions, issues of fact already pas- 
sed upon in the probate court cannot be transferred to the district 
court for trial ; and so much of the act of May, 7, 1855 (amending 
the Probate act), as provides for such transfer, has been declared un- 
constitutional. See Deck's Estate v. Gherke, 6, Cal. R. p. 666. 

Accordingly, no appeal can now be taken from the probate to the 
district court ; nor can issues of fact be transferred to the latter, af- 
ter being passed upon in the probate court. And the jurisdiction of 
the district courts, in probate proceedings, may now be considered 
as extending only to the trial of issues of fact certified to it, as pro- 
vided by statute (6), and to the exercise of those general powers 
with reference to the estates and persons of minors, and the like mat- 
ters, which it possesses by virtue of the equity jurisdiction, conferred 
upon it by the constitution, (c) 

PRACTICE 

IN PBOBATE PBOCEEDINGS. 

Section 293 of the Probate Act, provides that : the practice in the 
district court shall be applicable to proceedings in the probate court, 
so far as the same does not conflict with any enactment specially ap- 



(a) People v. Perdlia, 8 Cal. R., 379 ; Caulfield v. Hudson, ibid, 389 ; Hernandez v. 
Simon ib., 464 ; Reed v. McCormick, 4 Gal. B. 342 ; TotcnsendY, Brooks, 6 Cal. R. 62; 
Deck's Estate v. Oherke, 6 Cal. R. 666. 

(6) See Title " Practice," etc., next page. 

(c) See Sec. 6 of Article vi, of the Constitution, ante, p. 19. Also Wilson et cU. v. Roach 
et id. J Cla/rk v. Perry, and Keller v. Franklin, cited in note_(a) a/nU, p. 19. 



22 tSBUBS OP PACT— APPBAL8. 

plicable to the probate court, or is not inconsistent with the provi- 
sions of the probate act, or the act to provide for the appointment, 
and prescribe the duties of guardians. 

ISSUES OP PACT. 

Issues of fact joined in the probate court, may be tried in that 
court in all cases, where neither party elects to transfer the same to 
the district court, unless the probate judge shall, of his own motion, 
send it to the latter court for trial by jury, which he may do in his 
discretion* 

In the mandamus case, Gherke v. Freelon, July Term, 1865, the 
Supreme Court held that it was discretionary with the probate judge 
to order or certify an issue of fact to a district court, to satisfy his 
conscience on some disputed point, in accordance with the practice 
which prevails in courts of chancery. 

But since the amendments of 1855 to the Probate Act, below re- 
ferred to, it would seem to be obligatory upon the probate judge to 
certify such issues to the district court for trial, upon the application 
of either party. 

Section 20 of the Probate Act, as amended April 23, 1855, provides 
for the trial of issues joined in the probate court, on applications for 
the probate of wills. (See sec. 20, past.) 

Section 294, as amended May 7) 1855, provides that in the cases 
enumerated therein, issues of fact joined in the probate court shall be 
certified for trial to the district court of the county, on the applica- 
tion of any person interested in, or affected by, the decision thereof. 

Section 314 (added by the amendment of April, 23, 1855) provides 
that, all other issues of fact joined in the probate court shall be dis- 
posed of in the same manner, as is provided in section 20, for issues 
joined on application for the probate of wills. 

In regard to the manner of making up issues of fact, to be tried in 
the district court, and the proceedings thereon, see sections 20, 294 
to 296 inclusive, and 301 of the Probate Act, post 

APPfiALS J'ROM THE PBOBATB COTTBT. 

Sections 363 to 365 inclusive, of the Practice Act, prescribe the 
cases in which appeals may be taken from the probate to the district 
court, the time in which they must be taken, etc. 

But the appellate jurisdiction conferred by the statute upon the 
district courts having been declared unconstitutional {ante p. 21), no 
appeal can now be taken from an order or judgment of a probate 
court, except to the Supreme Court, as provided by the Probate Act. 



PRACTICE. 23 

The cases in which such appeals may be taken, the time within 
which they must be taken, the manner in which they must be per- 
fected, etc., are prescribed in sections 297 to 302 inclusive, of the 
Probate Act, which see, post. 

Section 300 provides, that the provisions (as amended) of the Prac- 
tice Act, in regard to appeals to the district court, (sections 363, 366) 
shall still be applicable to appeals from the probate court, " so far as 
they do not conflict with the provisions of this act." 

See sections 297 to 302 of the Probate Act, post, and the notes to 
those sections. 

In regard to actions by and against executors and administrators, 
and other matters of practice, see the several sections of the Act, post. 



ESTATES OF DECEASED PERSONS. 



AN ACT TO REGULATE THE SETTLEMENT OF THE ESTATES OF DECEASED PERSONS, 

PASSED MAY 1, 1861. 



The People of the State of California^ represented in Senate and 
Assembly J do enact as follows : 



CHAPTER I. 

JURISDICTION. 

§ 1. The county court, when sitting for the transaction of 
ftrobate Court probatc busincss, shall be known and called the "Probate 

and Judge. * , 

Court," and the county judge shall be ex-offido^ probate 
judge, (a.) 

\ 2. Wills shall be proved, and letters testamentary, or of 
In what coun- administration, shall be granted: 1st. In the county of 
probated, etc.*'^ wMch thc dcccascd was a resident at, or immediately pre- 
vious to his death, in whatever place his death may have 
happened. 2d. In the county in which he may have died, 
leaving estate therein, and not being a resident of the state. 



(a.) There has heen some diversity of opinion in regard to the proper title 
of the county judge, sitting as judge of the probate court, and the particu- 
lar form in which orders etc., made in proceedings in the proba^ court, to 
which his signature is requisite, should be signed : as, whether thysignature 
should be — "A. B., county judge," or "A. B., county judge and ex-oflBcio, 
judge of the probate court," — or, simply, " A. B., probate judge." The 
constitution (article 6, section 8,) provides that the " county judge" " shall 
hold his office for four years," and " shall perform the duties of surrogate 
or probate judge." 

Section 61 of the act of May 19, 1853, concerning " courts of justice" etc., 
provides that, " there shall be in each county, a probate caurt^' etc ; and sec. 
62 enacts that, " the county judge shall be the judge of the probate court." 
In the "act to regulate the settlement of the estates of deceased persons," 
the titles of " probate court," and " probate judge," are uniformly employ- 
ed. The latter title is now adopted in the probate court of the city and 
county of San Francisco, in all proceedings therein. 



JURISDICTION. 25 

8d. In the county in which any part of his estate may be, he 
having died out of the state, and not having been a resident 
thereof at the time of his death, (a.) 

The meaning of this prorision, (Babdivision 1 of sec. 2) is,' that adminis- 
tration must be granted in the county of which dececLsed ynu a resideiU cU the 
time of his death ; and the words, '' or immediately previous to," must be 
considered as mere sarplosage : Beckett et ai. r. Sdover, 7 Cal. R., January 
term. 

It is the object of the law, that administration should not be granted until 
the death of the party, and only one administration within the state ; it there- 
fore makes his residence at the time of his death, the test by which to deter- 
mine where the grant should be made. Accordingly, these two facts must be 
aUeged in the petition ; and they must be true in fact. If not true in fact, the 
proceedings are «oii2; and the decision of the probate court upon these juris- 
dictional facts is not conclusiye upon any one not actuaUy before the court. 

Ibid, 

And, unless the court has jurisdiction, the proceedings, however regular, 
cannot be sustained, coCUUerdUy, as in a case where administration is granted 
by a probate court of the wrong county. Ibid, and cases cited in the opinion. 

The probate court cannot refuse to hear testimony to show that the deceas- 
ed was not at the time of his deatii, a resideat of tiie county where the estate 
was being administered. Ibid. 

In the provisions of the statutes relating to testamentary matters, the terms 
" resident " and " inhahitant " have the same purport, and are to be construed 
in reference to the domidl of the decedent. A domicil once acquired, contin- 
ues till another has been gained animo et facto. Isham v. OibboTiS, 1 Brad- 
ford's R,, 70. 

Letters granted by a court having no jurisdiction cure void; and the court 
having jurisdiction, may proceed to grant letters vnthout a revocation of those 
previously issued. Expcurte, B^ker, 2; Leigh , 719, and seeHtAyoke v. Haskins 
—noted ante p. 20. 

§ 3. When the estate of the deceased is in more than one 
county, he having died out of the state, and not having been ti^aiirdcd'^if 
a resident thereof at the time of his death, the probate *'«t»ppii<»*i<»»- 
court of that county in which application is first made for 
letters testamentary, shall have exclusive jurisdiction of the 
settlement of the estate. 



(a) Qucere. In the case of a non-resident of the State dying in one county, 
and leaving estate in another, but none in the county in which he died— ^ 
where is administration to be granted 1 Such a case does not seem to be 
provided for in the statute, which gives jurisdiction, neither to the probate 
court of the county in which he died, nor of that in which he left estate ; and 
a resort to the equity powers of the district court of the county in which the 
estate was situated, would seem to be necessary. 



CHAPTER n. 

OF THE PROOF OF WILLS. («) 

§ 4. Any person having the custody of any will, shall, 

within thirty days after he shall have knowledge of the 

custodTof^'^u death of the testator, deliver it into the probate court which 

jUoute^Mirt.*** has jurisdiction of the case, or to the person named in the 

will as executor. 

See postf sec. 13. 

§ 5. Any person named as executor in any will, shall, 
Executor muat withiu thirty days after the death of the testator, or within 
prewnt will, etc. ^j^jp^-y ^g^yg g^f^gj. j^^ j^j^g knowledge that he is named execu- 
tor, present the will, if in his possession, to the probate 
court which has jurisdiction. 



Renunciatioii, 



§ 6. If he intends to decline the trust, he shall, at the 
or''l!ttuk^''by samc time, file his renunciation in writing ; if he intends to 
execu r. acccpt, hc shall present with the will, a petition praying that 

the will be admitted to probate, and that letters testamen- 
tary be issued to him. 

[Forms No. 1 to 10, Appendix.] 

"^ § 7. Every person who shall neglect to perform any of the 

' duties required in the preceding sections, without reasonable 

noneompiLice'. causc, shall bc liable to every person interested in the will, for 

the damages they may sustain in consequence of such neglect. 

§ 8. Any person named as executor in a will, though the 
Petition for wiU is uot iu Ma possession, may present his petition to the 
executor u not probatc court which has jurisdiction, praying that the per- 
wiiT***^*"^ * son in possession of the will may be required to produce it, 
that it may be admitted to probate, and that letters testa- 
mentary may be issued to him. 

[Forms No. 7, 18, Appendix.] 

Petition by § 9. Any person having an interest in the will, may, in 
STSemt^ like manner, present a petition praying that it may be re- 
quired to be produced and admitted to probate. 

[Form No. 7, Appendix.] 

[a.] The decisions of the courts of this State bearing npon the matters 
treated of in this division of the Statute, and not more properly falling under 
some particular Section, are collected at l^e end of the chapter. 



PROOF OP WILLS. 27 

§ 10. If it be alleged in any petition that any will is in 
the possession of a third person, and the court shall be satis- order for pro: 
fied that the allegation is correct, an order shall be issued when^in poises- 
and served upon the person having possession of the will, portj. 
requiring him to produce it at a time to be named in the order. 

[Forms No. 7, 18, Appendix] 

§ 11. If he has possession of the will and neglects or re- penalty for 
fuses to produce it in obedience to the order, he may, by ^y^^^^^'r 
warrant from the court, be committed to the jail of the 
county, and be kept in close confinement until he shall pro- 
duce the will. 

[Forms No. 65, 66, Appends.] 
Compare Sec. 63 of the Jadicial Act, anie p 17, and Sec. 117 y past, 

§ 12. Applications for the probate of a will, or for letters ^ ucations- 
testamentary, may be made to the probate judge out of term- "^^^'l^^™*^ 
time, and he may also, out of term-time, issue all necessary *®™^ *^«' 
orders and warrants to enforce the production of any will. 

§ 13. When any will shall have come into the possession 

of the probate court, the court shall appoint a time for poSt^tiiiS for 

proving it, which shall not be less than ten, nor more than p~^*^^"- 

thirty days, and shall cause notice to be given thereof, by Notice thereof 

publication, not less than twice a week, in some newspaper, *^^ff*^«°- 
if there is one printed in the county, if not, by notices in 
writing posted in three public places in the county. 

[Forms No. 13, 11, Appendix.] 

^ 14. If the heirs of the testator reside in the county, the citation to 

' , , "^ ' heirs, if they re- 

court shall also direct citations to be issued and served upon sideintheooun- 
them to appear and contest the probate of the will at the 
time appointed. 

[Form No. 12, Appendix.] 
As to service of Citation, see Sections 288-290, inclusive, post. 

§ 15. If the will is presented by any other person than 
the one named as executor, or if it is presented by one of stations to 
several persons named as executors in the will, citations ^'®^~"*®"»®*®- 
shall also be issued and served upon such person or persons, 
if resident within the county. 

[Form No. 12, Appendix.] 

§ 16. The court shall also direct subpoenas to be issued to 

SabpoeaM to 

the subscribing witnesses to the will, if they reside in the subscnbingwit. 
county. 



28 PBOOF OF WILLS. 

§ 17. At the time appointed, or at any time to which the 

Hearing proof hearing may be continued, upon proof being made that notice 

has been given as required in the proceeding sections, the 

court shall proceed to hear the testimony to prove the will. 

[Fonn No. 16, Appendix.] 

Who jnaycon- ^ 18. Any porsou interested, may appear and contest the 
to appoint attor- will. If it appear that there are minors who are interested, 

neyfor minors, */ , ,, . 

etc. or persons residing out of the county, the court shall appoint 

some attorney to represent them. 

[Form No. 19, Appendix.] 

A creditor, or other party in interest, may contest the wUL Whether the ob- 
jector he a creditor may be disputed. The oath of the objector is sufficient in 
the first instance, but if the demand be denied, he must set forth the particu- 
lars of his debt so as to show its nature and basis. When the question of in- 
terest is raised, adverse testimony- will only be received where it is a quetiion 
-of stibsiance ; but on an application for an inventory — an account ; — ^for In" 
creased security, &c., ihe positive oath, with facts showing interest, wiU suf- 
fice, and the merits of the claim will not be tried. BvrweU v. Shaw, 2 Brad- 
ford's R., 822. CoUereU v. Brockj 1 Bradford's R., 148. 

A legatee may intervene to oppose proof of a codicil revoking hia legacy. 
Walsh V. Ryarif 1 Bradford's R., 433. And see Beao'd v. Knoxj noted at the 
end of the chapter. 

It seems that a party who has not filed allegations against the validity of a 
will, and who has not appealed, cannot contest the probate on allegations 
filed and appeal taken by another party. But when upon aUegations it has 
been fully determined that the will is not sufficiently proved, any of iha next 
of kin, not a party to the contest, niay avail himself of the decision, though 
it was not obtained at liis instance. Mason v. Jones, 2 Bradford's Reports, 
325. 

§ 19. If no person shall appear to contest the probate of 
Probate where a wiU, the court may admit it to probate, on the testimony 

will ia not con- '' ^ ' ^ 

tested. of one of the subscribing witnesses only, if he shall testify, 

that the will was executed in all particulars as required by 
law, and that the testator was of sound mind at the time of 
its execution. 

[Forms No. 20, 21, 23, Appendix.] 
See Section 24. post, and cases noted. 

in?^nrto*1aie* § 20, If any person appears and contests a will, be shall 

l^nndsofoppo- g|^ ^ statement in writing of the grounds of his opposition ; 

iMaes of &ct when any issue or issues of fact shall be joined in the pro- 

bate court, respecting the competency of the deceased to 

make a last will and testament, or respecting the execution 

by the deceased of such last will and testament under re- 



PBOOF OF WILLS. 29 

fitrant or undue influence, or fraudulent representations, or 

for any other cause aflfecting the validity of such will, such 

issue or issues shall, at the request of either of the parties 

interested^ be certified immediately to the district court of 

the proper county, for trial by jury ; or may, by consent of 

the parties, be tried by the probate court. Issue shall be imm w*»b 

deemed joined by the filing of the grounds of opposition as 

aforesaid, with the clerk of the probate court. Such issue im««« ^ow 

made up and 

or issues of fact, shall be made up and tried in the same tried. 
manner as is or may be provided by law, for the trial of „ , , ,. 

J, « . , , . . ^ 1 Special Terdlct 

issues of fact m omer cases ; upon determination of such to be rendered. 

issue or issues of fact, the jury trying the same shall render 

a special verdict thereon, and the finding of the jury shall ^^^^^^^^^^^^^^^ ^ 

be certified by the district court to the probate court, where- gjjj*« ^^^ 

upon the probate court shall proceed to admit said will to 

probate, or not, according to the facts found and the 

law. (a.) 

[Forms No. 24, 25, 26, Appendix.] 

Compare sections 294, 295, 296 and 301, post^ in regard to the manner of 
the trial in the district courts of issoes of fact joined in the probate courts, 
(&»,, and see ante, p. 20. 

§ 21. If the will is contested, all the subscribing wit- if wiu contest 

' I. J «^> *^ the sub 

nesses who are present in the county, and who are of sound scribingwitness. 

es to be exam- 

mind, must be produced and examined, and the death, ab- ined. 
sence, or insanity, of any of them, shall be satisfactorily 
proved to the court. 

It is is not necessary that both witnesses should prove thai the provisions of 
the staivie as to the mode of execution^ were complied with. Where one wit- 
ness testified clearly to their performance, and the recoUection of the other 
was vague and indistinct : Held^ that the proof of execution was sufficient — 
Wevr V. Fiizgeraid, 2 Bradford's R., 42. 

And see the case of Peebles r. Case (where the subscribing witnesses had 
losi all reedUection of the execution of the instmment), noted at tiie end of 
the chapter. 



§ 22. If none of the subscribing witnesses reside in the 
county at the time appointed for proving the will, the court 
may admit the testimony of other witnesses to prove the 
sanity of the testator, and the execution of the will ; and 
as evidence of the execution, it may admit proof of the 



(a.) Amended April 23, 1855. All that portion of tiie present section, 
from, and including the words, '^ when any issue or issaes of fact shsdl be 
join^," in the third line, to the end, was i^ded by ike amendment 



Proof of win. 



1 



tached. 



80 PBOOF OF WILLS. 

Proofby hand, handwriting of the testator, and of the subscribing wit- 
^^**°** nesses, or any of them. 

§ 23. The testimony of each witness shall be reduced to 

Testimony to ^^i^i^^g* ^^^ sigucd by him, and shall be deemed good evi- 

fttti^uS^tiSi. ^®^^® ^^ ^^y subsequent contests concerning the validity 

of the will, or the suflBciency of the proof thereof, if the 

witness be dead, or has permanently removed from this 

State. 

[Latter part of form No. 23, Appendix.] 

§ 24. If the court shall be satisfied upon the proof taken, 
or from the facts found by the jury^ that the will was duly 
tifiL^tobe^'It- executed, and that the testator at the time of the execution 
was of sound and disposing mind, and not under restraint, 
undue influence or fraudulent misrepresentation, a certificate of 
the proof and the facts found, signed by the probate judge 
and attested by the seal of the court, shall be attached to 
the will, (a.) 

[Forms No. 22, 23, Appendix.] 

In case of great physical infirmities, something more than mere formal 
proof should he required. Additional evidence to show that the mind accom- 
panied the wiU, and that its provisions were understood, is necessary. This 
may be supplied by subscribing witnesses or aliunde. Weir y. Fitzgerald, 2 
Bradford's R., 42. 

Defects of the senses do not incapacitate ; but, it appearing that the testator 
being of advanced age, and his hearing and sight impaired, the circumstances 
attending the execution of the unU should he carefully scrutinized for a/n/y 
traces of imposition or artifice. Ibid. 

And see Mowry v. SUbuTy 2 Bradford's R., 133; McSorley v. McSorley^ 2 
Bradford's R., 188 ; and McOuire v. Kerr, 2 Bradford's R., 244 ; also, Bwrger 
V. HiUy noted at the end of this chapter. 



WiU and testi- 



§ 25. The will and the certificate of the proof thereof, 
SiTJe^r^ed!*^ together with the testimony which has been taken, shall be 
filed by the clerk, and recorded by him in a book to be pro- 
vided for the purpose. 

§ 26. The record of the will, and the exemplification by 
Record ta be the clcrk in whose custody it may be, shall be received in 
T ence. evidcncc and be as eflFectual in all cases as the original would 
be if proved. 

§ 27. AH wills which shall have been duly proved and 



(a.) Amended April 23, 1855. The portions of the section in italics, were 
added by the amendment. Laws of 1851, p. 450 ; CompUed Laws, p. 379. 
Laws 1855, p. 132. 



PBOOF OF WILLS. 81 

allowed in any other of the United States or in any foreign wius proved 
country or State, may be allowed and recorded in the pro- ete.,%henaiioir- 
bate court of any county in which the testator shall have 
left any estate ; provided it has been executed in conformity 
with the laws of this State. 

[Form No. 69, Appendix.] 

§ 28. When a copy of the will and the probate thereof, procwdings 
duly authenticated, shall be produced by the executor, or Sfforel^'Jrtii?" 
by any other person interested in the will, the court shall 
appoint a time of hearing, and notice shall be given in the 
same manner as in the case of an original will for probate. 

[Forms No. 14, 16, Appendix.] 

§ 29. If on the hearing it shall appear to the court that street of wm, 
the instrument ought to be allowed as the will of the de- *^*^«''*^ 
ceased, a copy shall be filed and recorded, and the will shall 
have the same force and eflFect as if it had been originally 
proved and allowed in the same court. 

§ 30. When a will has been admitted to probate, any per- 
son interested, may at any time within one year after such ^tJ^/^^- 
probate, contest the same, or the validity of the will. For jLe*^earr**^"* 
that purpose he shall file in the court before which the will 
was proved, a petition in writing containing his allegations 
against the validity of the will, or against the sufiSciency of againi^t;^ eu! 
the proof, and praying that the probate may be revoked. 

[Forms 28 to 30, Appendix.] 



to be filed. 



See ante Sec. 18, and cases cited, and Sec. 67, post* 

After the admission of a will of personal property to probate, allegations 
against the validity of the will and its probate, having been filed within the 
year, it is not sufficient for the executors on the citation to show cause, &c., 
why the probate of the will should not be revoked, to present the probate of 
the will as prima facte evidence of its validity. If the allegations are suffi- 
ciently broad, the will must be proved de novo. Though the probate is gene- 
rally conclusive as to the validity of the will, it is of no force in a proceeding 
instituted directly to impeach the probate itself. Collier v. Executors of IcUet/f 
1 ; Bradford's R., 94. And see Weir v. Fitzgerald^ noted at the end of this 
chapter. 

§ 31. Upon the filing of the petition, a citation shall be 
issued to the executors who have taken upon them the exe- cstatioM to b« 
cution of the will, or to the administrators, with the will iSISrestei? 
annexed, and to all the legatees named in the will, residing 
in the State, or to their guardians, if any of them are mi- 
nors, or their personal representatives, if any of them are 



82 PBOOF OP WILLS. 

dead, requiriiig them to appear before the court on some day 
of a regular term therein Bpecified, to show cause whj the 
probate of the will should not be revoked. 

[Forms No. 12, 46 and 61, Appendix;] 

§ 32. At the time appointed for showing cause, or at any 

The hearing. ^'^^^ ^^ which the hearing shall be continued, personal ser- 

yice of the citations having been made upon any person 

named therein, the court shall proceed to hear the proofs of 

The court to the partios. If any devisees or legatees named in the will 

fOT^minS?dev!^ shall bc miuors and have no guardians, the court shall ap- 

sees, etc. point somo attomcy to represent them. 

[Form No. 19, Appendix.] 

§ 33. If, upon hearing of the proof of the parties, the 
Probate, when court shall decldc that the will is for any reason invalid, or 
that it is not sufficiently proved to have been the last will 
of the testator, the probate shall be annulled and revoked. 

[Form No. 30, Appendix.] 

§ 34. Upon the revocation being made, the powers of the 
pabiiityofex- exccutor or administrator, with the will annexed, shall 

ecu tor, etc., for ' ' 

rerS^n"^' *® ccasc ; but such executor or administrator shall not be liable 
for any act done in good faith previous to the revocation. 

§ 35. The fees and expenses shall be paid by the party 

Fees and ex- coutcsting tho Validity of the will or the probate, if the will 

pensesjbjwhom ^j. probutc bc Confirmed. If the probate be revoked, the 

party who shall have resisted the revocation, shall pay the 

costs and expenses of the proceedings out of the property 

of the deceased. 

[Form No. 30, Appendix.] 

§ 36. If no person shall, within one year after the pro- 
bate, contest the same, or the validity of a will, the probate 
concSisVe.^ *** of the will shall be conclusive ; saving to infants, married 
women, and persons of unsound mind, a like period of one 
year, after their respective disabilities are removed. 

Lost er de § 37. Whcuever any will shall be lost or destroyed by ac- 
stroyed wiu. q{^qj^i or dcsigu, the probate court shall have power to take 
proof of the execution and validity of the will, and to estab- 
lish the same notice, to all persons interested, having been 
first given as prescribed in regard to proofs of wills in other 
cases. All the testimony given shall be reduced to writing, 
and signed by the witnesses. 

[Form No. 10, Appendix.] 






PROOF OP WILLS. 83 

§ 38. No will shall be allowed to be proved as a lost or 
destroyed will, unless the same shall be proved to have been MaitiuTtbMn 
in existence at the time of the death of the testator, or be ^n^^ot death, 
shown to have been fraudulently destroyed in the life time ^ 
of the testator, nor unless its provisions shall be clearly its proriaioiu 
and distinctly proved by at least two credible witnesses, i^um^i^^n, 

[Form No. 10, Appendix.] 

A wiU caimot be proved as a lost or destroyed wUl, anless it is shown to 
have been in existence at the death of the testator, or to have been fraudu- 
lently {or aocideaUiUy) destroyed in his life time. And when the wiU is last 
traced to the possession of the testator, and on his decease cannot be found 
after proper inquiry and examination, the presumption is that it was destroyed 
by the testator, animo revocandi. Buckley v. Redmond 2 Bradford's R., 
282. And see Holland y. Ferris, 2 Bradford's R., 334. 

§ 39. When any will shall be established, the provisions 
thereof shall be distinctly stated and certified "by the probate wmto*S"r5' 
judge, under his hand and the seal of his court ; and the cer- ^^J ^"^** 
tificate, together with the testimony upon which it is founded, 
shall be recorded as other wills are required to be recorded, 
and letters testamentary or of administration with the will teatimo^ tcTbe 
annexed, shall be issued thereon, in the same manner as "^ **^ **** 
upon wills produced aud duly proved. 

[Form No. 10, Appendix.] 

§ 40. If, before or during the pendency of an application 
to prove a lost or destroyed will, letters of administration to reBtmin ad- 
be granted on the estate of the testator, or letters testamen- executor appoin- 
tary of any previous will of the testator be ffranted, the ring pendency 

, ,1 , , . . , 1 . . of application to 

court shall have authority to restrain the administrators or prove io8t or de- 

stroyed will. 

executors so appointed, from any acts or proceedings which 
would be injurious to the legatees or devisees claiming un- 
der the lost or destroyed will. 

Cases bearing npon the general subject of the preceding division of the 
statute : 

Wills under the Spanish and Mexican law, and questions arising npon the 
probate of the will of a Mexican citizen of California, executed September, 
1S56, considered and discussed. Panaud y. Jones, 1 Cal., 4S8. 

The taking of a legacy by the wife, nnder the will of the husband, will not 
prevent her from contesting the validity of the will, sofar as it disposes of the 
one-half interest in the common property to others. Beard v. Knox, 6 
Cal., 252. 

She is entitled to her own share of the common property, and to the legacy 
out of the share of her husband. i%. 

On the trial of an i&sue of fact involving the validity of a wiU, a subocri- 
bing witness thereto is not rendered incompetent as a witness, by holding 

5 



84 PBOQF OF WILLS. 

lands devised therein in trast for a deYiflee^ and without having any interest 
himself therein. PeraXta v. Castro, 6 CaL, 364. 

If a will be properly proved, it is the duty of the surrogate to admit it to 
probate without inquiring as to its effect or construction, except so far as may 
be necessary to determine which ia the last will, when there are several in- 
struments inconsistent with each other. Ton Wert v. Benedict, 1 Brad- 
ford's R., 114. 

Though there can be but one last will, yet several pcvpers^ taken together, 
may constitute the last will. Ih. 

Although a will has been admitted to probate, a legatee under a later will 
may propound the latter for probate ; and is not concluded by the probate of 
the previous will. And if the two instruments are not entirely inconsistent, 
hath taken together m/vy he declared to constitute the last wiU of deceased. 
Weir V. Fitzgerald, 2 Bradford's R., 42. 

See syllabus of same case, noted under sections 21 and 24, ante, 

K the will is attested by strangers, evidence of the signature and hand- 
writing of the testator, may be resorted to for the purpose of showing his 
identity with the party executing the wilL Mory v. SUbur, 2 Bradford's 
R., 133. 

If the subscribing witnesses have lost all recollection of the execution of 
the will, yet if the court be satisfied by other evidence that they witnessed the 
execution of the will, it may be admitted to probate. The same rules of evi- 
dence apply to the proof of wills, as in other judicial investigatiops; and the 
making of the vnll " may he proved in the the very teeth of the subscribing 
witnesses," who may be contradicted in like manner as other witnesses. Hav- 
ing obtained jurisdiction, the surrogate must dispose of the matter according 
to the established rules of evidence. Peebles v. Case, 2 Bradford's R., 226. 

Proof of incapacity from attacks of delirium tremens^ receives additional 
effect from the circumstance of the will being an wnequal one. WcUers v. 
CuUen, 2 Bradford's R., 354. 

Besides being satisfied of actual cojpacity^ the probate court must determine 
whether^ in performing the particular a£t in question ^ the testator' understood 
the contents and effect of the instrument. Burger v. HiU, 1 Bradford's 
R., 360. 

Whenj on the probate of a will an alleged codicil is brought in by parties 
interested, but not cited, the proper course is to direct them to file an allega- 
tion propounding it for proof as part of the pending proceedings. CaHe v. 
Underhia, 3 Bradford's R., 101. 

The prevention of the execution of a codicil by improper means, cannot 
operate to invalidate the will. A will can only be revoked in the manner and 
form prescribed by statute. Leaycraft v. Simmons^ 3 Bradford's R., 35. 

And where a testator desired to make a codicil to his will in favor of his 
daughter ; and his son, who had custody of the will, and in whose favor it was 
made, refused to produce the will at the request of testator for the purpose of 
alteration : Held, that the will was not thereby rendered invalid, lb. 

Whether a paper is a will or not, does not depend upon the maker declaring 
it to be a will, but upon its contents. Carle v. Uhderhill, 3 Bradford's R., 101. 

An executor has no authority until the will is proved. Tucker v. Starks, 
Brayt. R., 99. 



LETTBBS TESTAMENTARY, BONDS, ETC. 35 

At common law, the granting of letters testamentary is concloaiTe proof of 
the probate of a will. The informalities and irregularities which may appear 
in the entries of the proceedings of a probate court, will not destroy the effect 
of a judgment establishing a wilL Denison t. Ingram^ Dallam's Texas Di- 
gest, p. 519. 



1 *>^ » 



CHAPTER m. 

LETTERS TESTAMENTARY AND OF ADMINISTRATION, AND BONDS 
OF EXECUTORS AND ADMINISTRATORS, (a.) 

§ 41. When any will shall have been proved and allowed, ten "to^^toJe 
the probate court shall issue letters thereon, to the persons "JiS! p™^***"*' 
named in the will as executors, who are competent to dis- 
charge the trust, and who shall appear and qualify. 

§ 42. No person shall be deemed competent to serve as who incompe- 
executor who, at the time the will is proved, shall be : 1st., execatoM.'^* " 
under the age of twenty-one years ; or, 2d., who shall have 
been convicted of an infamous crime ; or, 3d., who, upon 
proof, shall be adjudged by the court incompetent to exe- 
cute the duties of the trust by reason of drunkenness, im- »dmini8tr»tioii 
providence, or want of understanding. If any such person ed, when to is- 
be named as the sole executor in any will, or if all the per- 
sons named as executors are incompetent, letters of adminis- 
tration with the will annexed, shall be issued. 

Compare Sec. 55 jpostj and cases there cited. 

A person decreed to be a habitual drunkard, is not, hy such decree^ deprived 
of his power to perform the duties of the office of executor. 5iZZ v. McKnighi, 
7 Watts & Serg., 244. 

The person entitled to a preference in administration, cannot be excluded 
from his right except in the cases enumerated by statute. No degree of legal 
or moral guilt or delinquency wUl warrant such exclusion short of conviction 
of an infamous crime. Harrison v. MeMahan, 1 Bradford's R., 283. 

The single fact that the applicant is a professional gambler, is not of itself 
enough to debar him from the precedence secured him by statute, lb. 

§ 43. Any person interested in a will may file objections execitor**°iiay 
in writing to the granting of letters testamentary to the ^j£tem?eS?^ 

(a.) See cases noted at the end of the chapter. 



86 LETTBBS TESTAMBNTABT, BOKPS, STO. 

persons Bamed ae ezecotors, or any of them, and the objec- 
tions shall be heard and determined by the court. 

[Fonn No. 31, Appendix.] 

See Sec. 18, ante, and cases there cited. 

Bffoet of mar- 
riage of Ml exeo- & 44. When an unmarried woman, who shall have been 

ntriz. 

appointed executrix, shall marry, her marriage shall extin- 
guish her authority. 

See Sec. 56, pagt, 

§ 45. No executor of an executor shall, as such, be autho- 

exeStJ?not to ^izod to administer upon the estate of the first testator, but 

administer, ete. ^j^ ^.j^^ death of the solo or surviving executor of any last 

will, letter? of administration with the will annexed, of the 

estate of the first testator left unadministered, shall be 

issued. 

§ 46. When a person under the age of twenty-one years 
shall be named executor, letters of administration with the 
iB^i^S^Z will annexed, shall be granted during the minority of the 
**'■ executor, unless there is another executor who shall accept 

the trust and qualify ; in which case the executor who shall 
accept the trust and qualify, shall have letters testamentary, 
and shall administer the estate until the minnor shall arrive 
at full age, when he may be admitted as joint executor. 

§ 47. When all the executors named shall not be appointed 

executors^ nam- by the court, such as are appointed, shall have the same au- 

pointed.'*^ *^ thority to perform every act, and discharge every truj^l 

required by the will, and their acts shall be as effectual for 

every purpose, as if all were appointed and should act 

together. 



As to the powers, etc., of executors, see chapter ym., poit* 

§ 48. Administrators with the will annexed, shall have 
a^^tiStow the same authority as the executor named in the will would 
JlSdT^ *"' bave had, and their acts shall be as effectual for every pur- 
pose. 

In general, the term " administrators '' in the statutes relative to the estates 
of deceased persons, includes "administrators with the will annexed," and the 
latter are salject to aU the provisions applicable to administraetors generaUy, 
except so far as the distribution of the estate is directed hj thewilL Cx-parte, 
Brown, 2 Bradford's R., p. 22. 

§ 49. Letters testamentary and of administration with the 



LRTTEBS TBSTAlflBNTABT, BON^S, EfTO., 37 

will annexed, shall be signed by the clerk and be under the Letter, to be 
seal of the court. *^^' •*•• 

§ 50. Letters testamentary may be in substantially the 

following form : — " The State of California, county of . 

The last will of A. B., deceased, a copy of which is hereto te^TSstJLlSt^ 
annexed, having been proved and recorded in the probate "^' 

court of the county of , C. D., who is named therein, is 

hereby appointed executor. Witness, G. H., clerk of the 

probate court of the county of , with the seal of the 

court affixed, the day of , A. D. 18 — . (Seal.) By 

order of the court. G. H», clerk." 

§ 51. Letters of administration with the will annexed, 
may be substantially in the following form : — " The State of iem^ admin- 
California, county of . The last will of A. D., deceased, Sil wSi ui^ex- 

a copy of which is hereto annexed, having been proved and 

recorded in the probate court of the county of , and 

there being no executor named in the will (or as the case 
may be), C. D. is hereby appointed administrator with the 
will annexed. Witness, G. H., clerk of the probate court 
of the county of — — , with the seal of the court affixed, the 

day of , A. D. 18 — . (Seal.) By order of the 

court. G. H., clerk." 

§ 62. Administration of the estate of a person dying in- ^^^^ ^ ^ 
testate, shall be granted to some one or more of the persons ministration 

' ° *^ upon intestates' 

hereinafter mentioned, and they shall be respectively enti- «»*»*«». 
tied in the following order : 1st., the surviving husband or 
wife, or such person as he or she may request to have ap- 
T)ointed ; 2d., the children ; 3d., the father or mother ; 
1th., the brothers ; 5th., the sisters ; 6th., the grand chil- 
dren ; 7th., any other of the next of kin who would be enti- 
tled to share in the distribution of the estate; 8th., the 
public administrator ; 9th., creditors ; 10th., any person or 
persons legally competent ; provided, that when there was 
any partnership existing between the intestate, at the time survivingparf- 
of his death, and any other person, the surviving partner JdiditotBT^** 
shall in no case be appointed administrator of the estate of 
such intestate, (a.) 



See Sec. 64, post. 



(a.) Thig section as originaUy passed, in the tAatate oi 18&1, ended with tho 
words, " legally competent." The remaindier of the present section, beg^ 



88 LETTERS TESTAMENTABT, BONDS, ETC. 

Proof of desertioQ, ill-treatment, and the like, atid even cm tigreement of 
separation^ are not sufficient to deprive a husband of his right to administer 
upon his wife's estate. Case of AUemuSf 1 Ashmead's R., 49. 

So, too, if there has been an actual divorce, a mensa et 1horo» Clark v. 
Clarkt 6 Watts & Serg., 85. 

That section of the statute which provides that " any other of the next of 
kin who would be entitled to share in the distribution of the estate,'' shall be 
entitled to administer, must be construed to mean the next of kin capable of 
inheriting, or w7to would he entitled to ddMrihutiony if thei^e tpere no nearer 
kindred. Anderson v. Potter, 5 Cal. R., 63. 

The phraseology of the New York statute on the same subject, by which ad- 
ministration is given ** to the relatives of the deceased who would be entitled to 
succeed to his personal estate" or " who would he entitled to share in the dis- 
tribution of the estcUe" (both forms of expression being employed in the same 
section, 2 Rev. Stat., 3rd ed., p. 138, Sec. 28), is examined and discussed, and a 
somewhat different construction given to it in the case of The Public Aminis- 
traior v. Peters^ 1 Bradford's R., p. 100. The question in that case was, 
whether a relative of deceased, who had no interest in the estate (i. e., was en- 
titled to no distributive share), was entitled to administration in preference to 
the public administrator. And it was held that " a relative who has no inte- 
rest or no title to a distributive share, is to be considered as a stranger." 

The Surrogate says, in the opinion in that case, " The counsel for the ad- 
ministrator contended that this expression (would be entitled) allows any one 
to administer before the public administrator who by any possible contingency 
may be entitled to a share at the time of the distribution ; and that any rela- 
tive therefore, who may, by the decease of the next of kin, be placed in the 
line of succession, can administer ; because, bypossibxiity, he may be entitled 
to sha/re in the distribution. But this is not so ; the distributive shares in an 
estate become vested on the decease of the intestate, according to the relative 
positions of his next of kin at that time" * * * a xhe rights of all are 
settled at the time of the decease. The words ^ would be ' in the statute, can- 
not refer to what cannot possibly happen." * * ♦ " The nature of a dis- 
tributive share is sufficiently contingent to justify and account for the use of 
the subjunctive form in the expression which defines the class of relatives en- 
titled to administration " 1 Bradford's R., p. 103. (a.) 

On a contest for preference as to administration between relatives whose 
priority is not settled by statute, the single point to be ascertained is, who 
will be entitled to the surplus of the personal estate. Sweezy v. TTtZ/tJ, 1 
Bradford's R., 49$. 



(a.) The same question was raised at the March term (1858) of the probate 
court of the city and county of San Francisco, upon the adverse applications 
of R. C. Rogers, public administrator, and M. G. Noble, for letters of adminis- 
tration upon the estate of John C. Gabanis, deceased. Noble claimed the 
issuance of letters to himself as a second cousin of deceased, though not enti- 
tled to a distributive share of the estate, there being nephews of the deceased 
living out of the State. The matter was fully argued by Eugene Casserly and 
D. Rogers, Esqs., for the public administrator, and B. D. Baker and W. H. 
Tompkins, Esqs., for Noble. The court (Blake, probate judge,) held, that the 
words ^' next of kin," as used in the seventh classification of persons entitled 

ning with the words ^^ provided thaiy" was added by the amendment of April 
23, 1855. Original section, statute 1851, p. 454 ; Compiled Laws, p. 383 ; 
amended section, statute 1855, p. 132. 



LETTERS TESTAMENTABT, BOKDS, ETC. 89 

Who are the next of kin, is to be determined by the rule of the ecclesiastical 
law, which, in such matters, is a part of the common law. lb. 

And see section 4 of the act of April 13, 1850, (section 318, post,) to regu- 
late descents and distributions, which provides that, " the degrees of kindred 
shall be computed according to the rules of the civil law." Compiled laws, 
p. 188. 

A person not entitled to administration, cannot be joined as administrator 
with one who is entitled, on the suggestion of the surrogate, without or against 
the consent of the party entitled. Peters v Pub, Adm.j 1 Bradford's R., 200. 

§ 53. When there shall be several persons claiming, and 
equally entitled to the administration, males shall be pre- equally entitled, 

^ •' ' 'who nave pre- 

ferred to females, and relatives of the whole blood to those ference. 

of the half blood. 

§ 54. When there are several persons equally entitled to 
the administration, the court may, in its discretion, grant ^j^^^^^J^^^^j^J*^ 
letters to one or more of them. ^•"®"- 

Between brothers, administration will be committed to the one having 
most interest to execute it faithfully. Moore v, Moore, 1 Dev. N. C. R. 362. 

And see Churchttl v. Prescott, noted under next section. 

6 55. No person shall be entitled to letters of administra- 

* *^ Persons who 

tion who shall be : 1, under the age of twenty -one years ; or J^ti^^toVdmlS- 
2, who shall have been convicted of an infamous crime ; or i«ter. 
8, who upon proof shall be adjudged by the court incompe- 
tent to execute the duties of the trust, by reason of drunk- 
enness, improvidence, or want of understanding. 

See Sec. 42, ante, and cases there cited. 

Indebtedness to the estate does not render a person incompetent to admin- 
ister, nor take away his priority. But where several applicants are equally 



under our statute to administer, mean the next of kin to the deceased, after 
those before named in the same section. **Any person who is in that degree, 
however remote it may be from the deceased, is entitled to administration if 
he would be entitled to distribution in case there were no nearer kindred. 
The persons constituting this seventh class, though often more numerous than 
those in the preceding classes, are as much as any of them, a class by them- 
selves, as really distinct from the mass of the kindred, and capable of being 
ascertained with the like legal and actual precision. 

" A second cousin may be entitled to administer, because he may be of the 
* next of kin.' But if between him and the first six classes enumerated in the 
statute there are any of a degree of kindred nearer than himself to the de- 
ceased, he is not of * the next of kin,' according to the intendment of the 
statute. As there are recognized degrees of kindred between those in which 
the persons named in the first six classes alluded to are placed, and the degree 
to which a second cousin belongs, Noble, in order to entitle himself to admin- 
istration, should show that there are no persons living belonging to the inter- 
mediate degrees. But as it appears in evidence that the deceased left nephews 
surviving, it is clear that Noble is not, in the sense of the statute, of the * next 
of kin.' His application is accordingly denied, and letters must be granted to 
the public administrator." 



40 LETTEBS TESTAMENTABT, BOKDS, ETC. 

entitled, such a fact may be taken into consideration by the Sarrogate in 
deciding between them. ChurchiU v. PreecoU, 6 Bradford's B. 804. 

The bare fact that the applicant is a gambler will not be sufficient to ex- 
clude him as an improvident person ; the matter of improvidence, as a dis- 
qualification, discussed. Ha/rrison v. McMdhon^ 1 Bradford's B. 283. 

§ 56. When any unmarried woman, who shall have been 
miaTgtratriz^. ^ appointed administratrix, shall marry, her marriage shall 
extinguish her authority. 

See Sec. 44, cmU. 

Minor. ^ 57. If any person entitled to administration shall be a 

minor, administration shall be granted to his or her guardian. 

§ 58. Application for letters of administration shall be 

^^SuctIX^^ made by petition in writing, signed by the applicant or his 

"**^*' counsel, and filed with the clerk of the court. The petition 

must state the facts essential to give the court jurisdiction of 

the case. 

[Forms No. 9, 35, 39, 42 and 44, Appendix.] 

§ 59. Letters of administration shall only be granted at 
wh«n granted, a rcgular term of the court, or at a special term appointed 
by the judge for the hearing of the application. 

§ 60. When any petition praying for letters of adminis- 
•ationforW™. tratiou has been filed, the clerk shall give notice thereof b j 
causing notices to be posted up in at least three public 
places in the county, one of which shall be at the place 
where the court is held. The notice shall state the name of 
the deceased, the name of the applicant, and the term of the 
court at which the application will be heard. Such notice 
shall be given at least ten days before the hearing. 

[Forms No. 17 and 36, Appendix.] 

§ 61. Any person interested, may contest the application 
by filing a written opposition thereto, on the ground of the 
incompetency of the applicant, or may asser-t his own rights 
to the administration, and pray that letters be issued to him- 
self. 

[Form No. 40, Appendix.] 

See Sec. 18, onto, and cases there cited. 

Upon the application of the public administrator to the probate court of 
the city- and county of San Francisco, for letters of administration upon the 
estate of John C. Cabaniss, deceased, — opposed by a relative of deceased, 
praying the issuance of letters to himself ; the contestant claimed that under 



What to itate. 



LETTEBS TESTAMENTARY, BONDS, ETC., 41 

the last claase of this section he coald come in, under the proceedings insti- 
tuted by the public administrator, upon merely filing his oppositon thereto at 
the time fixed for the hearing, without previous notice of his application as 
prescribed by section sixty, and that letters could be awarded to him in like 
manner as upon a regular application upon notice under that section ; pro- 
vided he could show a better title than the first applicant. The court held 
that letters could not be issued to a contestant of whose application the usual 
notice had not been given, and continued the hearing to afford time for such 
notice. 

§ 62. On the hearing, it being first proved that notice Hearing of »p. 
has been given according to law, the court shall proceed to p^^**^®*^ 
hear the allegations and proof of the parties, and to order 
the issuance of letters of administration as the case may 
require. 

IForms No. 17, 36, 37, 41, 41 A, 43 and 47, Appendix.] 

§ 63. An entry in the minutes of the court that proof was Minute* of 

__ .111 . T xiiiii conrt conclusive 

made that notice had been given according to law, shall be astonouce. 
conclusive evidence of the fact of such notice. 

§ 64. Letters of administration may be granted to any 
applicant, though it appears that there are other persons ^®^^t*** *^^ 
having better rights to the administration, when such per- 
sons fail to appear and claim the issuance of letters to them- 
selves. 

[Forms No. 44 and 47, Appendix.] 
See Sec. 73,jpo^. 

By the provisions of the fifty-second section, together with those of section 
sixty-four, it would seem clear that the public administrator is entitled to ad- 
mmlstratlon upon all estates not otherwise administered. Becket et cU. v. 
Selover, 7 CaL R., 215. 

§ 65. Before letters of administration shall be granted on proof of death 
the estate of any person who is represented to have died in- ®^"**®"^*^*®' 
testate, the fact of his dying intestate shall be proved by 
the oath of the applicant, and the court may also examine 
any other person concerning the time, place and manner of 
the death, and whether or not the deceased left any will ; 
and may compel any person to attend as a witness for that 
purpose. 

[Form No. 37, Appendix.] 

The fact that decedent died intestate, is ordinarily shown by establishing 
that no will can be found. Buckley v. Redmond, 2 Bradford's R., 281. 

Where a will was duly executed by the deceased and left in the possession 
of his counsel, and a few months afterwards the testator sent for it, avowing 
the purpose of destroying it, and a day or two subsequently stated that he 

6 



42 LBTTEBS TKSTAHEKTABT, BONDS, ETC. 

had destroyed H : HMj that, although the tacts raised a presiunption that the 
will had been detstroyed by the deceased, it was proper to examine his papers 
for the purpose of ascertaining whether the instrument had in fact be^ oao* 
celled. Ih, 

Upon an application for letters of administration, if a will be alleged, fiie 
proceeding may be stayed, to afford an opportunity to prove the wilL 
Whether deceased died intestate must be determined by the law of the place 
where he was domiciled. Isham v. OMons^ 1 Bradford's R., 69. 

But see Sec. 27, ante, 

§ 66. Adminstration may be granted to one or more com- 

^*^"to*8ev^ petent persons, although not entitled to the same, at the re- 

etSf **'^^*'*' quest of the person entitled to be joined with such person. 

The request shall be in writing and shall be filed in the 

court. 

[Form No. 44, Appendix.] 

But a person not entitled, cannot be joined as administrator with one who is 
entitled, except with the consent of the latter. The Surrogate has no discre- 
tion for such purpose. Peters v. Pvb. Ad/nur.^ 1 Bradford's R., 200. 

§ 67. When letters of administration have been granted 
to any other persons than the surviving husband or wife, the 
child, the father, mother, or the brother of the intestate, any 
iettSS*3^dSikf- one of them may obtain the revocation of the letters by pre- 
iitration. gentiug to the probate court a petition praying the revoca- 
tion, and that letters of administration may be issued to him 
or her. 

[Form No. 44, Appendix.] 

atation to ad- § 68. When any such petition is filed, the clerk shall issue 
miniitrator. ^ citatiou to the administrator to appear and answer the 
petition at the next regular term of the court, or at any spe- 
cial term that may be appointed by the judge. 

[Forms No. 46, 46, Appendix.] 

§ 69. At the time appointed, the citation having been duly 
titionforrevoca- scrved and retumed, the court shall proceed to hear the 
allegations of the parties ; and if the right of the applicant 
is established, and he or she be competent, letters of ad- 
ministration shall be granted to the applicant, and the let- 
ters of the former administrator be revoked. 

[Forms No. 46, 47, Appendix,] 

§ 70. The surviving husband or wife, where letter^ of ad- 
other caaea!*^ ministratiou have been granted to a child, to the father, or 
to a brother of the intestate, or any of such relatives when 
letters have been granted to any other of them, may assert 



LETTEBB TB9TAUE1VTA8T, B0in)8, ETC 43 

his or her prior right and obtain letters of administration, 
and have the letters before granted revoked in the manner 
prescribed in the three preceding sections. 

§ 71. Letters of administration shall be signed by the 
clerk and be nnder the seal of the court, and may be in sub- of adminiBtn- 
stantially the following form : — ** The State of California, 

county of . C. D. is hereby appointed Administrator 

of the estate of A. B., deceased. [Seal.] Witness, Q. H., 
clerk of the probate court of the county of ---^^, with the 

seal of the court aflSxed, the day of , A. D. 18 — • 

By order of the court. G. H., clerk.'' 

(Form No. 48, Appeadix.] 

§ 72. Before letters testamentary or of administration 

^ 0»th to b« to- 

shall be issued to the execuior or administrator, be shall ^ea befor« lev 

ten iuoed. 

take and subscribe, an oath or affirmation, before the pro- 
bate judge or clerk, that he will perform, according to Law, 
tho duties of executor or administrator. 

[Forms No. S3, 34 and 58, Appendix.] 



BonAi to b« 
giTon. 



§ 73. Every person to whom letters testamentary or of 
administration, shall have been directed to issue, shall, be- 
fore receiving the letters, execute a bond to the State of 
California, with two or more sufficient sureties, to be ap- 
proved by the probate judge. . In form, the bond shall be ^** *'™- 
joint and severaX and the penalty shall not be less than 
twice the value of the personal property belonging to the 
estate, which value shall be ascertained by the probate 
judge, by the examination on oath of the party applying, 
and of any other persons he may think proper to examine. 
The probate judge shall require an addUional bond vAenever the 
sale of any real estate belonging to an estate is ordered by him. 
The bond shall be conditioned that the executor or adminis- 
trator shall faithfully execute the duties of the trust accord- 
ing to law. He shall also require bond and sufficient surety for ^S'^*' **** 
the annual rents, issues and profitSj of all real estate in his charge 
as such executor or administrator^ to be approved by the probate 
judge, (a.) 

[Form No. 38, Appendix.] 
See Sec. 64, ante. 



(a.) Amended May 3d., 1852. See statutes of 1852, p. 105. The amend- 
ment added the portions of the section in italics. Statute 1851, p. 456 ; Com- 
piled Laws, p. 385. 



Additional bond 
on sal* of real 
Mtato. 



44 LETTERS TESTAMENTARY, BONDS, ETC. 

The party entitled may receive letters where they have been ordered to be 
issaed to another applicant, such applicant neglecting to perfect the requisite 
bond. Harrison v. McMdhonj 1 Bradford's R., 283. 

See Spencer v. Cahoonj noted at the end t>f the chapter. 

Separate bonds, g >j^^ When two Or morc persoiis shall be appointed execu- 
tors or administrators, the probate judge shall take a sepa- 
rate bond from each of them. 

[Form No. 38, Appendix] 

Joint administrators and co-executors, are regarded in law as one person ; 
and consequently the acts of one, in respect to the administration, are deemed 
to be the acts of all, in as much as they have a joint and entire authority over 
the whole property. Deem v. Dufieldf 8 Texas R., 235. 

And see cases noted at the end of chapter YHI., concerning the powers and 
duties of executors and administrators. 

onone^nd. § 76. The bond shall not be void upon the first recovery, 
but may be sued upon from time to time, by any person ag- 
grieved, in his own name, until the whole penalty is ex- 
hausted. 

juitfficatton ef §76. lu all cases where bonds are required by this act, 

sureties. «• 

the sureties must justify on oath, before the judge or derk of 
some court having a seal, to the eflfect that they are house- 
holders or freeholders, resident within this State, and worth 
the amount justified to, over and above their debts and IwbUi- 
tieSf exclusive of property exempt from execution ; such justifi- 
cation shall be in writing, signed by the person justifying, and 
To be filed, etc. certified to by the judge or derk who takes the same, and 
attached to and filed with the bond. Whenever the penal 
suretiei for ^^°^ ^^ ^^ boud amouuts to morc than two thousand dollars, 
portiona. \^q surctics may be allowed to become liable for portions of 

said penal sum, making in the aggregate the whole penal 
sum of such bond, (a.) 

[Form No. 38, Appendix.] 

enritiea^to ap- § 76 A. (Seo. 8.) Beforc the probate judge approves any 

ammed%tc/^" boud, rcquircd by said act, {fhe probate act) he may of his 

own motion, or at any time after the approval of such bond, 

upon the motion o'f any person interested in said estate, sup- 



(a.) Amended May 7, 1855. Stat. 1855, p. 299. The italics indicate the 
changes.made by the amendment. By the statute of 1851, the sureties were 
required to justify in d(mhle the amount for which they became liable, and 
were allowed to become liable for portions of the penal sum where it amount- 
ed to more than five thousand doUars. See Stat. 1851, p. 456 ; Compiled 
Laws, p. 136. 



LETTERS TESTAUENTABT, BONDS, ETC. 45 

ported by affidavit, that any one, or all of such securities, 
are not worth as much as they have justified to, order a cita- 
tion to issue, requiring such security or securities to appear 
before him, at a particular time and place, to testify touching 
his or their property, i^nd its value ; and the judg^gball, at j^^^^^^ ^ 
the time such citation is issued, cause a notice to be issued «*<>', «t«. 
to the executor or administrator, and requiring his appear- 
ance at the return of said citation. Upon the return of the 
citation, the judge may swear the securities and such wit- p^of toncw 
Besses as may be produced, touching the property of such property of sure 
securities and its value, and if, upon such investigation, the 
judge is satisfied that the bond is insufficient, he may require 
sufficient additional security, within such time as may be 
reasonable, not less than five days, {a) 

§ 76 B. (Sec. 4.) If sufficient security is not given within 
the time fixed by the judge's order, the right of such execu- j^ ^^^ ^^^^ 
tor or administrator to the administration shall cease, and ty not given. 
the person next entitled to the administration on the estate 
who will execute a sufficient bond, shall be appointed the 
administrator. 

§77. When it is expressly provided in the will of a testa- 
tor that no bond shall be required of the executor, letters 
testamentary may issue without any bond having been giv- ^^S^^S*^ 
en ; but an executor, to whom letters have been issued with- '""^* 
out bond, may, at any time afterwards, whenever it may be 
shown from any cause to be necessary or proper, be required 
to appear and file a bond as in other cases. 

[Form No. 21, Appendix.] 

§78. Whenever any person interested in any estate shall 
discover that the sureties of any executor or administrator, fi^thlrJ^Suy! 
have become, or are becoming insolvent, that they have 
removed or are about to remove from the state, or that from 
any other cause, the bond is insufficient, he may apply by 
petition to the probate judge, and require that further secu- • 
rity be given. 

[Form No. 49, Appendix.] 
Compare sees. 82, 83, postf and see anUf sec. 18, and cases there cited. 



(ct) This, together with the following section, are the 3d and 4ih sections 
of the act of May 7, 1855, amending section 76, (stat. 1855, p. 299.) They 
are inserted here, and designated as above, for convenience of reference. 



46 LETTEB8 TBSTAKENTJLBT, BONDS, BTC. 

Any person interested in the estate of a testator, may applj for an order to 
show cause why the executor should not be superseded on ijie ground that his 
circumstance? wre so precarious as not to afford adequate security for the due 
administration of the estate. An apparent interest positively sworn to, will 
authorize the application, and the validity of the clium will not he tried on 
sach appll0§tion. CcMerOL v. Brodi, 1 ^^ford's R, 148. 

§ 79. If the probate judge shall be satisfied that the mat- 
ter requires investigation, a citation shall be issued to the 

citation to show . ja*»xj. -•••I-*a a 

cause against executor or administrator, requiring him to appear at a 
apidication. ^.^^ ^^^ place to be therein specified, to show cause why- 
he should not give further security. The citation shall be 
served personally on the executor or administrator, at least 
five days before the return day. If he shall have absconded 
or cannot be found, it may be served by leaving a copy of 
it at his last place of residence. 

[Forms No. 50 aod 51, Appendix.] 

§ 80. On the return of the citation or. at such other time 
as the judge shall appoint, he shall proceed to hear the 
rity may be or- proofs and allega,tions of the parties. If it shall satisfacto- 
rily appear that the security is from any cause insufficient, 
he may make an order requiring the executor or administra- 
tor to give further security, or to file ^ a new bond in the 
usual form within a reasonable time, not exceeding five 
days. 

[Forms No. 51 and 62, Appendix.] 

§ 81. If the executor or administrator, n^lect to comply 
with the order within the time prescribed, the judge shall, 
by order, revoke his letters, and his authority shall there- 
upon cease. 

[Form No. 53, Appendix.] 
Seejx2«<Sec. 283. 

§ 82. When a petition is presented praying that an exeeo- 

tor or administrator be required to give further security. 

Powers of exe- a.nd when it«hall also be alleged, on oath or affirmatioii, 

pended, ete.*** that th^ cxectttor or administrator is waiting the property 

of the estate, the judge may, by order, suspend his powers 

until the matter can be heard and determined. 

[Form No. ^, Appendix.] 
Compare Sec. 281, post, 

§ 88. When it shall come to his knowledge that the bond 
of any executor or administrator is from any cause insuffi* 



LETTEB8 TESTA.KElirrABY, BONDS, ETC. 47 

cient, it shall be the duty of the probate judge, without any j„^ ^^ ^^ 
application, to cause him to be cited to appear and show ?uJit/"^tho?t 
cause why he should not gi\e further security, and to pro-^P****^**^**- 
ceed thereon as upon the application of any person inte- 
rested. 

§ 84. When either or all of the sureties of any executor suretiwwish- 
or administrator shall desi'i}^ to be released from responsi- ed. 
bility, on account of his futuresptcts, they may make appli- 
cation to the probate judge for relief, and the judge shall 
cause a citation, to the exi^iitor or administrator, to be issued 
and served, requiring him to appear, at a time and place to 
be therein specified, and to give other security. 

[Forms No. 54 to 66. See also No. 61, Appendix.] 

§ 85. If new sureties be given to the satisfaction of the ^^^ sureties, 
judge, he may, thereupon, make an order that the surety or 
securities who applied for relief, shall not be liable on their 
bond for any subsequent act, default, or misconduct of the 
executor or administrator, 

[Form No. 54, Appendix.] 

§ 86. If the executor or administrator neglect or refuse to 
give new sureties, to the satisfaction of the judge, on the re- revoked"if %w 
turn of the citation, or within such reasonable time as the 1^"'**®'*''"*^^' 
judge shall allow, not exceeding five days, he shall by order 
revoke the letters granted. 

[Forms No. 65 and 66, Appendix.] 

§ 87. The applications authorized by the nine preceding Application 
sections of this chapter, may be heard and determined out S^temT*^**''** 
of term time. All orders made therein, shall be entered 
upon the minutes of the court. 

§ 88. When there shall be a delay in granting letters tes- g ^j^^ ^^^^^ 
tamentary or of administration, from any cause, or when ^^^rator. 
such letters shall have been granted irregularly, or no sufficient 
bond shaU have been filed as required by laWj or when no appli- 
cation shall have been made for such letters, the probate 
judge shall appoint a special administrator to collect and 
take charge of the estate of the deceased, in whatever county 
or counties the same may be found, and to exercise such other 
powers as may be necessary for the preservation of the 
estate; or he may direct the public administrator of his 
county to take charge of the estate, (a.) 

"-- --■ -■ -■ __ ■ !_ 

(o.) Amended AprU 23, 1856. The amendment added the portions of the seo- 



48 LETTERS TESTAHENTAB7, BOlfDB, ETC. 

[Form No. 57, Appendix.] 

By the eigbty-eigbth section, which has reference to tpecicU adminitiratian, 
the court is authorized to " direct the public administrator to take charge of 
the estate." The phrase ^' take charge of the estate, " is qualified by the 
scope of the section, and only means to give the public administrator the same 
powers over the particular estate as he would have over the class of estates 
referred to in the 14th chapter. Beckett v. Selover, 7 Cal. R., 216. 

An appointment of an administrator prg tern, which does not conform to the 
etatute, may be treated as a nullity. • AUxcmder v. Ba/irfield^ 6 Texas B., 400. 

§ 89. The appointment may be made, out of term time, and 
without notice, and shall be made by entry upon the minutes 
ciiy^' pSieJr of the court, which shall specify the powers to be exercised 
^^^ ' by the administrator. Upon such order being entered, and 
after the person appointed has given bond, the clerk shall 
issue letters of administration to such person, in conformity 
with the order. 

[Form No. 57 and 68, Appendix.] 

§ 90. In making the appointment of a special administra- 
pointe*d.**NoSp- tor, thc probatc judge shall give preference to the person or 
pJmtJeX *^ persons entitled to letters testamentary or of administra- 
tion. But no appeal shall be allowed from the appoint- 
ment. 

See ante Sec. 62, and cases cited. 

§ 91. Before any letters shall issue to any special adminis- 
_, trator, he shall give bond in such sum as the probate judge 

Bond to be gir- to r •> o 

•n- may direct, with sureties to the satisfaction of said judge, 

conditioned for the faithful performance of his duties. 

[Form No. 38, Appendix.] 

§ 92. The special administrator shall collect and preserve 
for the executor or administrator, all the goods, chattels and 
debts of the deceased, and for that purpose may commence 
Duties of special g^jj(j maintain suits as an administrator. He may sell such 
perishable property as the probate court may order to be 
sold, and may exercise such other powers as may have been 
conferred upon him by his appointment ; but in no case shall 
he be liable to an action by any creditor on a claim against 
the deceased. 



tion in italics, substituting " shaU " appoint for '* may" appoint, and omitting 
the words " iif there be one," which came after " public administrator" in the 
statute of li 5 1. Statutes of Ubd^ p. 383 ; Statutes of 1851 , p. 458 ; Compiled 
Laws, p. 388. Amended section, Statutes of 1^63, p. 133, § 4. 



LETTERS TESTAMENT ABT, BONDS, ETC., 49 

In regard to actions by and against executors, etc., see post sections, 195 to 
200, inclusive, and cases noted at the end of chapter YIII. 

§ 98. When letters testamentary or of administration, on 
the estate of the deceased have been granted, the powers of 
the special administrator shall cease, and he shall forthwith when hiB pow- 
deliver to the executor or administrator, all the property •"*•***■*• 
and effects of the deceased in his hands ; and the executor 
or administrator may be permitted to prosecute to final 
judgment, any suit commenced by the special administrator. 

6 94. The special administrator shall also render an ac- 

, To account on 

count, on oath, of his proceedings, in like manner as other oath, 
administrators are required to do. 

In reference to aoeounts to be rendered by administrators, etc., see post 
chapter X. 

§ 95. Whenever an executor or administrator shall die, 
or his letters be revoked, and the circumstances of the special admin- 

istrator in other 

estate require the immediate appointment of an administra- cases- 
tor, the probate judge may appoint a special administrator 
as provided in the preceding sections. 

§ 96. In case any one of several executors or administra- 
tors, to whom letters shall have been granted, shall die, be- in<»8«o/one 

' ° ' ' or more, of sev- 

come lunatic, be convicted of an infamous offence, or other- «"^^ executors 

' ' becoming mcom- 

wise become incapable of executing the trust, or in case the petcnttoact. 
letters testamentary or of administration, shall be revoked 
or annulled according to law, with respect to any one execu- 
tor or administrator, the remaining executor or administra- 
tor shall proceed and complete the execution of the will or 
administration. 

§ 97. If all such executors or administrators shall die or 
become incapable, or the power and authority of all of 
them shall be revoked according to law, the probate court 
shall issue letters of adniinistration with the will annexed, inwmJlteS**"S 
or otherwise, to the widow or next of kin, or others, in the *°** 
same manner as is directed in relation to original letters of 
administration. The administrators so appointed, shall give 
bond in the like penalty, with like sureties and conditions 
as hereinbefore required of administrators, and shall have 
the like power and authority. 

[Forms No. 32, 23, 42, 43 and 38, Appendix.] 

§ 98. If, after granting letters of administration on the 

7 



50 ..LETTBBS TSSTAICENTA&T, BONDS, ETO. 

ground of intestacy, a will of the deceased shall be duly 
If wiu proved provcd and allowed by the court, the letters of administra- 
ten of admiuisi tion shall be revoked, and the power of the administrator 
shall cease, and he shall render an account of his adminis- 
tration within such time as the court shall direct. 

[Form No. 69, Appendix.] 

On application by one of the next of kin for a revocation of letters of ad- 
ministration 6n the ground that deceased left a will, and it being proved that 
a will had been executed : ffeldt that in the absence of proof that the will 
was in the possession of deceased, or unrevoked, at the time of his death, it 
was improper to revoke the letters. ffcUand v. Feri^. 2 Bradford's R., 613. 

§ 99. In such case, the executor of the will, or the admin- 
powersofexecistrator with the will annexed, shall be entitled to demand, 
«J. '"^^^ * sue for and collect, all the rights, goods, chattels and effects 
of the deceased remaining unadministered, and may be ad- 
mitted to prosecute to final judgment, any suit commenced 
by the administrator before the revocation of his letters of 
administration. 

§ 100. Any executor or administrator may, at any time, 
by writing, filed in the probate court, resign his appoint- 
inSiBt«tor°^ay Dicnt, having first settled his accounts and delivered up all 
'®"^- the estate to such person as the court shall appoint ; Pro- 

vided, if, by reason of any delays in such settlement and de- 
liveriiig up of the estate, or for any other cause, the circum- 
stances of the estate or the rights of those interested in the 
estate, shall in the opinion of the court require it, the court 
may, at any time before such settlement of accounts and de- 
court may re- Hvcring up of thc cstatc shall have been completed, revoke 
rs, e . ^^^ powers, or the letters testamentary or of administration 
of such executor or administrator, and appoint in his stead, 
an administrator, either special or general as the case may- 
require, and in the same manner as is directed in relation to 
original letters of a-dministration. The liability of the out- 
going executor or administrator, or of the sureties on his 
bond, shall not be in any manner discharged, released or 
affected, by such appointment of a special or general ad- 
ijainistrator in his stead, (a.) 

[Form No. 139, Appendix.] 
See Sec. 222, post. 



(a.) Amended March 30, 1858. See Statutes 1858, p. 105. The amend- 
ment adds all that portion of the present section from the word " provided," 
to the end. 



LBTTBftS TESTAMENTABT, BONDS, ETC. 51 

An adminiBtrator canaot resiga by permission of the probate court, withoat 
first settling up his accounts and deliyeriQg over the estate to his successor 
appointed by the court. The permission given in one case by the 100th sec- 
tion of the statute, is a negative upon the right in others. Hwynes v. Meek&y 
July term, 1867. 

Same case, after re-argument, J^anuary'term, 1858. 

Though the probate court has no right to accept the resignation of an ad- 
ministrator until he has settled his administration accounts, such JEin accept- 
ance of his resignation is only a voidable error, and not void. Fb , January 
term, 1858. 

The acceptance by the probate court of the resignation of an administrator, 
is. sufficiently established by the appointment of his successor. lb. 

Where an administrator resigns, or is removed, leaving the administration , 
incomplete, there is no fixed rule of compensation. The probate court should 
apportion it, in reference to the compensation fixed by law for l^e whole, ac- 
cording to sound judgment. Ord y. lAtUe^ 3 Cal. R., 287. 

§ 101. All acts of an executor or administrator, as such, Acts of execu- 
before the revocation of his letters testamentary or of ad-power"i^S^okSd! 
ministration, shall be as valid to all intents and purposes as 
if such executor or administrator had continued lawfully to 
execute the duties of his trust. 

§ 102. A transcript from the minutes of the court, show- 
ing the appointment of any person as executor or adminis- 
trator, together with the certificate of the clerk under his Transcript from 

__ _, i*»i. jij 1 1 • minutes to be ev- 

hand and the seal of his court, that such person has given idence. 
bond and been qualified, and that letters testamentary or of 
administration have been issued to him, and have not been 
revoked, shall have the same effect in evidence as the letters 
themselves. . 

§ 103. No probate judge shall admit to probate, any will, 
or grant letters testamentary or of administration, in any .^^^jj^p^^*» 
ease where he shall be interested as next of kin to the de- 
eeasedj or as a legatee or devisee under the will, or wh^re 
he shall be named as executor or trustee in the will, or shall 
be a witness thereto. 

§ 104. When any probate judge, who would otherwise be 
authorized to act, shall be precluded from acting from the i^ guch case 
causes mentioned in the preceding section, or when he shall "^^^tltr^^Zity 
be in any manner interested, upon a representation and due ^ *^** 
proof thereof to the probate judge of an adjoining county, 
such judge shall be vested with all the powers and authority 
of the proper probate judge, in relation to the proof of any 
will and the granting of letters testamentary or of admlnis- 



52 BFFE0T8 OF DECEASED PEBSONB* 

tration thdreon, and the granting of letters of administra 
tion in cases of intestacy, and shall retain jurisdiction as to 
all subsequent proceedings in regard to the estate. 

Cases not noted under the preceding Sections of Chapter IIL 

Letters of administration are but evidence of authority, and the administra- 
tor may act without them if the records of the court show his appointment. 
Sbsey v. Brasher ^ 8 Port. Ala. R., 669. 

Letters of general adminstraiion granted pending a contest respecting the 
probate of a will, are void ; and cannot be supported as a grant of adminis- 
tration, pendente lite. Slade v. Washburn^ 3 Iredell's N. C. R., 657. 

Where A. B. was appointed administrator, and qualified as such, though a 
blank bond was signed by him and his surities, his acts were held yalid until 
his letters were revoked. Spencer v. Cahoon^ 4 Dev, N. C. R., 226. 

A surety on an administration bond, does not, before an accounting is had, 
stand in a fiduciary relation to the creditors of the intestate, and is not charge- 
able with any primary responsibility as to the management of the estate. 
And one of the sureties of an administratrix having purchased claims against 
the intestate at three shillings on the dollar, and there being no proof of con- 
nivance between him and the adminiBtratrix, or that the money oi the estate 
had been used in buying the claims, the purchases were held to be valid. Hoi- 
sted V. Eyman, 3 Bradford's R., 426. 



CHAPTER IV. 

THE INVENTORY AND COLLECTION OF THE EFFECTS OF DE- 
CEASED PERSONS, (a.) 

§ 105. Every executor or administrator, shall make and 
layentorj to be return to thc court, at its first term after his appointment, a 
"***®' true inventory and appraisement of all the estate of the de- 

ceased which shall have come to his possession or knowledge, 

[Form No. 61, Appendix.] 

See cases noted under section 107. 

The Surrogate can of his own motion, enforce the return of an inventory, 
though it is not usual to require the exhibition of an inventory or account, 
unless at the intervention of a party in interest ; but the mere appearance of 
interest is sufficient. Thomson v. Thomsony 1 Bradford's R., 24. 



(o^) Some authorities bearing upon the general subject of this chapter, and 
not noted under particular sections, will be found at the end of the chapter. 



EFFECTS OF DECEASED PERSONS. 53 

§ 106. For the purpose of making the appraisement, the 
probate judge shall appoint three disinterested persons, any Appmuen to 
two of whom may act, and who shall be entitled to receive ^-ffek'wmpen- 
a reasonable compensation for their services, to be allowed'**^**''' 
by the court ; their compensation, as allowed, shall be in 
the form of a bill of items of their services, which shall be 
sworn to by them and filed with the inventory, and which 
shall not exceed five dollars per day. If any part of the 
estate shall be in any other county than that in which let- when part of 

. 1 . .-, n -t .i-i.ii^T the estate in ano- 

ters issued, appraisers thereoi may be appointed, either by ther county. 
the probate judge having jurisdiction of the case, or by the 
probate judge of such county. 

[Forms No. 60, 61, Appendix.] 
See cases under next section. 

§ 107. Before proceeding to the execution of their duty, the 
appraisers, before any oflScer authorized to administer oaths, oath.^^^ 
shall take and subscribe an oath, to be attached to the in- 
ventory, that they will truly, honestly and impartially, ap- 
praise the property which 'shall be exhibited to them, ac- 
cording to the best of their knowledge and ability. They tow made. ' 
shall then proceed to estimate and appraise the property, 
and shall set down each article separately, with the value 
thereof in dollars and cents, in figures opposite to the arti- 
cles respectively. The inventory shall contain all the estate 
of the deceased, real and personal, a statement of all debts, 
partnerships and other interests, bonds, mortgages, notes, j^^^^^ ^^^ 
and other securities for the payment of money belonging to***^^®'*****^' 
the deceased, specifying the name of the debtor in each se- 
curity, the date, the sum originally payable, the indorse- 
ments thereon, if any, with their dates and the sum, which 
in the judgment of the appraiser may be collectable on each 
debt, interest or security. 

[Form No. 61, Appendix.] 
See cases cited at the end of the Chapter. 

The appraisers are officers appointed by the Sonrogate, and their f^pprai^e- 
meat may be reylewed and corrected. It is not conclosiye. If they make a 
Talaation palpably erroneous, the Surrogate may direct the error to be recti- 
fied. Ames y. Dowmng^ 1 Bradford's R., 821 ; Appleton v. Cameron, 2 Brad- 
ford's R., 119. 

So, if in taking the inventory, tibe jffoperty directed by statute to be set 
apart for minor children was not so apportioned, the error may be corrected. 
Ib.y and Clayton v. WcMrdeUy 2 Bradford's R., p. 1. 

It is only the interest of a deceased partner in the itufpLus after the pay- 



54 EFFECTS OF DECEASED PERSONS. 

ment of the partnenihip debts/ which is assets in the hands *of the administra- 
tor. It is accordingly, sufficient to note the interest of the deceased in the 
partnership generally, upon the inventory. Thomson v. Thomson, 1 Brad- 
ford's R., 24. 

See Montgomery v. Dunning j noted at the end of the chapter. 

Upon an accounting, the affirmative of establishing more assets than are 
acknowledged by the inventory and account, is with the party objecting ; and 
it must be established with reasonable certainty, and not left to mere coigec- 
ture or suspicion. Marre v. Ginochto, 2 Bradford's R., p. 156. 

§ 108* The inventory shall also contain an account of all 

moneys belonging to the deceased which shall have come to 

Shall further ^^^ hands . of thc cxecutor or administrator, and if none. 

contain. gj^g^jj j^g^^^ come to his hands, the fact Bhall be so stated in 

the inventory. 

[Form No. 61, Appendix.] 

§ 109. The naming any person executor in a will, shall 
not operate as a discharge of any just claim which the testa- 
tor had against the executor, but the claim shall be included 
Debt of execu- in thc invcutory, and the executor shall be liable for the 

tor to testator. ^ .-i.-ii i.^i-i-i 

same as for so much money in his hands at the time the debt 
or demand becomes due. 

§ 110. The discharge or bequest in a will of any debt or 
demand of the testator, against any executor named in his 
will, or against any other person, shall not be valid again&t 
Duchar e of ^'^^ crcditors of the deceased, but shall be construed only as 
debtinwiu. ^ gpecific bcqucst of such debt or demand ; and the amount 
thereof shall be included in the inventory, and shall, if ne- 
cessary, be applied in the payment of his debts. If not ne- 
cessary for that purpose, it shall be paid in the same man- 
ner and proportion as other specific legacies. 

§ 111. The inventory shall be signed by the appraisers, 
Inventory. ^^^ ^^^ cxccutor or administrator shall take and subscribe 
an oath, before the probate judge or the clerk of the court, 
that the inventory contains a true statement of all the estate 
Must be verified, of thc dcccascd which has come to his knowledge and pos- 
session, and particularly of all money belonging to the de- 
ceased, and of all just claims of the deceased against the 
executor or administrator. The oath shall be indorsed upon 
or annexed to the inventory. 

{Form No. &1, Appendix.] 

§ 112. If any executor or administrator shall neglect or 
returned, etc. rcfuse to- rcturn the inventory .within the time prescribed, or 



EFFECTS OF DECEASED PERSONS. 55 

withinr such furtl^r time, not exceeding two months, as the 
court shall for reasonable cause allow, the court shall revoke 
the letters testamentary or of administration, and the execu- 
tor or administrator shall be liable on his bond for any in- 
jury sustained by the estate by his neglect. 

[Forms No. 62, 6S, Appendix.] 

§ 113. Whenever property not mentioned in any inventory 

Till 1 Further Inven- 

that shall have been made, shall come to the possession or tory. 
knowledge of an executor or administrator, he shall cause 
the same to be appraised in the manner prescribed in this 
chapter, and an inventory to be returned within two months 
after the discovery thereof ; and the making of such inven- 
tory may be enforced after notice, by attachment or removal 
from ofl&ce. 

See sections 105 and 107, supra. 

§ 114. The executor or administrator, shall have a right 
to the possession of all the real as well as personal estate of „ 

. t n n Executor, etc., 

the deceased, and may receive the rents and profits of the*? i^a^® poBaea- 

sion of property. 

real estate, until the estate shall be settled, or until delivered 
over by order of the probate court to the heirs or devisees, 
and shall keep in good tenantable repair, all houses, build- 
ings, and fences thereon, which are under his control. 

Compare Sec. 194 and cases noted. 

§ 116. The personal estate of the deceased which shall 
come into the hands of the executor or administrator, shall 
be first chargeable with the payment of the debts and ex- 
penses ; and if the ffoods, chattels, rights and credits in the if personal es- 

r ^ n , n . . ! f 1 ,1 , AT. ***® insufficient 

hands of the executor or administrator, shall not be sum- to pay debts. 
cient to pay the debts of deceased and the expenses of ad- 
ministration, and the allowances to the family of the de- 
ceased, the whole of the real estate may be sold for that 
purpose, by the executor or administrator, in the manner 
prescribed by this act. 

See jKW^ chapter Vn., in regard to sales of property by executors, etc. 

§ 116. If any person, before the granting of letters testa- 
mentary or of administration, shall embezzle or alienate any ^^tion by e»- 
of the moneys, goods, chattels, or effects, of any deceased ^^''embezriS, 
person, he shall stand chargeable and be liable to the action ®*®' 
of the executor or administrator of the estate, for double 



56 EFFECTS OF DECEASED PEBSONS. 

the value of the property so embezzled or alienated, to be 
recovered for the benefit of the estate. 

§ 117. If any executor or administrator, heir, legatee, 
creditor, or other person interested in the estate of any de- 

Citations to per- iii •!• i i*i -, 

son charged with ccascd pcrson, shall complain to the probate ludffe, on oath, 

haying converted * , ji 11 

property of dec'd that any person is suspected to have concealed, embezzled, 
conveyed away, or disposed of, any moneys, goods, or chat- 
tels of the deceased ; or that he has in his possession or 
knowledge, any deeds or conveyances, bonds, contracts, or 
other writings, which contain evidences of, or tend to dis- 
close the right, title, interest or claim of the deceased, to 
any real or personal estate ; or any claim or demand, or any 

ma ^IT^^Amin- ^^^^ ^^^^ ^^ ^^® dcccascd, thc Said judge may cite such person 

ed on oath. ^q appear before the probate court, and may examine him 

on oath, upon the matter of such complaint. If such person 

be not in the county where letters have been granted, he 

Where cited ^^^7 ^® citcd and examined either before the probate court 

and examined, of thc couuty whcrc hc may bc fouud, or before the court 

Expenses allow- issuiug thc ordcr or citation. But, if in the latter case he 

ed if innocent, ^^^q^lj* and bc fouud inuoccnt, his necessary expenses bhall 

be allowed him out of the estate. 

[Form No. 64, Appendix.] 

In reference to the power of the probate court to compel the production of 
papers, property, etc., see section 63 of the Judicial Act, at page 17, ante. 

§ 118. If the person so cited, refuse to appear and submit 
to such examination, or to answer such interrogatories as 
may be put to him, touching the matter of such complaint, 
the court may, by warrant for that purpose, commit him to 
•^toroed°°^' ^^^ the county jail, there to remain in close custody until he 
shall submit to the order of the court ; and all such inter- 
rogatories and answers shall be in writing, and shall be 
signed by the party examined and filed in the probate court. 

[Forms No. 65, 66, Appendix.] 

§ 119. The probate judge, upon the complaint on oath, of 
atation to per- any executor or administrator, may cite any person who 
execu"lrr*^ete! shall havc bccn intrusted by such executor or administrator 
TsVater'^^'^^^'with any part of the estate of the deceased person, to ap- 
pear before such court, and may require such person to ren- 
der a full account on oath, of any moneys, goods, chattels, 
bonds, accounts, or other papers belonging to the estate 
which shall have come to his possession in trust for the 6i- 



EFFECTS OF DECEASED PEBSOKB. 57 

ecutor or admini&trator, and of his proceedings thereon ; 
and if the person so cited shall refuse to appear and render 
such accoimt, the court may proceed against him, as provi- 
ded in the preceding sectiojji. 

[Fonos No. 64 :to 66, Appendix.] 

Under a section of the Texas Proljate Act, (article 1,228, of Hartley's Texas 
Digest,) the chief justice is authorized, upon complaint filed, to cause any per- 
son (including previous administrators) to appear before him and deliver up 
any papers, evidences of debt, &c., which he may have in his possession be- 
longing to an estate, or show cause to the contrary. 

It was held that this section did not empower the court to require an ad 
ministrator who had been removed, to surrender his vouchers, or any papers 
necessary to his own defence. Miller v. Jasper, 10 Texas R., 513. 

Ckbses not Noted under the Sections of the pt'eceding Division of the Staiute. {a.) 

A probate judge ought not to reject an inventory exhibited by an executor 
or administrator, because it contains property, the title to which is disputed. 
OM's case, Kirby's Conn. R., 100. 

Executors and administrators are bound to inventory and account for pro- 
visions belonging to deceased at the time of his death. Oriswdd v. Chand- 
leTf 5 New Hampshire R., 492. 

Appraisers are officers appointed to estimate and appraise ; but their ap- 
praisement is not conclusive. It may be reviewed, examined and corrected. 
Ajppieton V. €a/meron, 2 Bradford's R., 119. 

If they neglect to set apart property for the widow or minor children, or 
make a valuation palpably erroneous, the Surrogate may direct the en'or to 
be rectified. lb. 

The valuation made by the appraisers in the inventory, is not conclusive 
against the executor or administrator, but may be shown to have been erro' 
neous. Ames v. Douming, 1 Bradford's R., 321. 

It may be shown on the accounting of the administrator or executor, that 
the assets were not correctly stated in the inventory. Montgomery v. Dun- 
ning, 2 Bradford's R., 220. 

The rule that the inventory cannot be impeached or reformed, relates to 
proceedings in relation to the inventory itself. But it may be shown, on the 
accounting, that the assets were not correctly stated in the inventory. lb. 

In the ecclesiastical courts, an inventory cannot be falsified ; and if allega- 
tions pleading omissa are entertained, yet if the allegations are denied in the 
answer, evidence will not be received against the answer. If the answer con- 
fesses more assets, the inventory may be amended. Thomson v. Thomson, 1 
Bradford's R., 24. 

The administrator of a surviving partner, stands in the same position as the 
surviving partner in his life time, and although he has the legal title to the 
prrtnership effects, yet they are assets of the firm, and not of his intestate, and 
should neither be inventoried nor accounted for as property of his intea- 
tate. lb. 



(a.) See also the cases under chapter X,, respecting accounting by execu- 
tors, etc. 

8 



58 EFFECTS OF DECEASED PEB80NS. 

It is only the interest of the deceased partner in the gurplua after ihepay» 
merU of the pa/rtnershtp debts which is assets in the hands of his adminia- 
trator. It is not usual, therefore, to make a specific inventory of copartner- 
ship assets, but it is deemed sufficient to note the interest of the deceased in the 
partnership, generdUy upon the inventory. lb. 

If, on taking the inventory, the property directed by statute to be set apart 
for minor children was not so apportioned, the error may be corrected on the 
accounting. Clayton v. Wa/rdeU, 2 Bradford's R., p. 1. 

The provisions of the statute directing certain articles to be set ainde in the 
inventory for the benefit of the widow and minor children of the deceased, 
are not limited to cases where the deceased was a resident of this State. 
These articles are not assets — do not belong to the executor or administrator, 
and are not the subject of administration or distribution. Kip v. Pvb. Admr^ 
2 Bradford's R., 258. 

Lands descended in another State, cannot be conffldered as assets. Austin 
y. Oage, 9 Mass., R. 395. 

The right of enjoyment of possession of public lands, may descend among 
the efiects of a deceased person to the executor or administrator, and the 
right of the deceased be conveyed by a regular sale to another. Orover v. 
HawUy, 5 Cul. R., 485. 

A note and mortgage made to a husband and wife, goes to her in case she 
survives, and not to the administrator as assets. Draper v. Jackson, 16 Mass., 
480. 

Specific personal property held by deceased in trust, is not assets in the ex- 
ecutors hands, but is held by him as his testator held it ; othervfise, if the 
property ha/oe no ear-mark, in which case the person entitled must came in as 
a general creditor. Johnson v. Am£s, 11, Pickering, 173. 

The administrator should inventory property belonging to the estate, though 
in the hands of a stranger. Potter v. Titconib, 1 Fairf., 53. 

And if there are promissory notes belonging to the estate, made by the ad- 
ministrator, deposited in the hands of a tliird person, he must inventory 
them, though he denies them to be due the estate. Jb, 



CHAPTER V. 



PROVISION FOR THE SUPPORT OF THE FAMILY. 



§ 120. When a person shall die, leaving a widow or a mi- Proviaion for 
nor child or children, the widow, child or children, shall, SSSei?*"^**' 
until letters have been granted and the inventory has been 
returned, be entitled to remain in possession of the home- 
stead, and of all the wearing apparel of the family and of 
all the household furniture of the deceased, and shall also 
be entitled to a reasonable provision for their support, to be 
allowed by the probate judge. 

[Forms No. 67, and 68, Appendix.] 

§ 121. Upon the return of the inventory, the court shall 
set apart for the use of the widow, or minor child or chil- Property set 
dren, all property which is by law exempt from execution,* 
or so much of such property as may have belonged to the 
deceased. 

[Forms No. 69 and 72, Appendix.] 
See Sec. 124, infra^ and note to that section, and cases cited. 

§ 122. If the whole property exempt by law be not inclu- j, property set 
ded in the inventory, and if the amount set apart be insufl&- JP^^* ^ ^'*®' 
cient for the support of the widow and child or children, 
the probate court shall make such reasonable allowance out 
of the estate as shall be necessary for the maintenance of 
the family, according to their circumstances, during the pro-taJto^be^MttSd 
gress of the settlement of the estate ; which, in case of an '^***^ ""^^ ^^'• 
insolvent estate, shall not be longer than one year after 
granting letters of administration. 

[Forms No. 69, 70, 72 and 73, Appendix.] 

§ 123. Any allowance made by the court, in accordance aiioTO^c?."*^ ^^ 
with the provisions of the preceding section, shall be paid 
by the administrator in preference to all other charges, ex- 
cept funeral charges and expenses of administration. 

[Forms No. 69, 70, 72 and 73, Appendix.] 



60 SUPPOBT OP PAMILT. 

§ 124. If there is no law in force exempting property 
Property to be from exccution, the following shall be set apart for the use 

J^jXr ^'^ 'of the widow, or minor child or children, and shall not be 
subject to administration : 1st., all spinning wheels, weaving 
looms, and stoves put up or kept for use ; 2d., the family 
bible,- family pictures, and school books and library, not ex- 
ceeding in value two hundred dollars ; 3d., all sheep, to the 
number of twenty, with their fleeces, and the yarn or cloth 
manufactured from the same ; two co\^s, five swine, with 
the necessary food for them for six months ; 4th., all wear- 
ing apparel of the widow and children, and all household 
goods, furniture and utensils, not exceeding in value seven 
hundred aord fifty dollars * 5th., the homestead, considting of 
any qualntity of land not exceeding twenty acres^ and the 

The homestead. cl^elHug bouflc thercou, witb its appurtenances, not being 
ineliided in any incorporated town or city ; or instead 
thereof, a quantity of land, not exceeding one lot, in any in- 
corporated town or city, and the dwelling house thereon, and 
its appurtenanoesy to be selected by the widow ; or if there 
be no widow, to be designated by the probate judge, and not 

to exceed in any case, more than five thousand dollars in 
value. 

[Forms No. 69 atd 73^ Ap^Bdix] 

See sefction^21, Ante; also section 219 of the Practice Act, 9xl&. sections 1 
and 10 of tlie Homestead Act. 

It would seem that it is auder these latter provisions, and not under section 
124, that the probate court now acts in setting apart property for the use of 
the widow or minor child, etc. (o.) 

A widow who has once applied to the probate court to have the last resl- 

{d.) Sec. 21d of the Practroe Act, passed' April 29, 1851, as amended May 
15, 1854, provides for the exemption of certain property from execution. 
Compiled LaWs, p; 559 ; Amended section Statutes of 1854, p. 62 ; Wood's 
Digest, p. 3 95. 

Sections 1 and lO of the Homestead Act, passed April 21, 1851, (Compiled 
Laws, p. 85a J Wood's Digest, pp. 483, ^4,) provide as foHows : 

^ 1, The homestead, consisting of a quantity of land, together with the 
dwelling house thereon and its appurtenances, not exceeding in value tlie sum 
of five thousaBd doUars, to be selected by tiie owner thereof^ shall not be sub- 
ject to forced sale on execution, or on any other final process from a court, for 
any debt or liability contracted or incurred' after thirty days from the passage 
of this act, or if contracted or incurred at any time in any other place than in 
this State. 

§ 10. The homestead and other property exempt from forced sale, upon the death 
of the head of the family, shall be set apart by me probate court for the benefit of 
the surviving wife and his own legitimate children; and in case Of no sur- 
viving wife or his own legitimate children, for the next heirs at law; 
pnmdedj that lihe exemption as provided m this section, shall not extend to 
unmarried persons, except when they have charge of minor brothers or sisters, 
or both, or brothers' or sisters' minor children, or a mother or unmarried As- 
ters living in the house i^ith them. 



SUPPORT OP FAMILY. 61 

dence of her husband and herself set aside as a homestead, and has acquiesced 
for eighteen months in the order so setting it aside, is concluded by her own 
acts, from afterward claiming a lot on which they formerly resided, merely 
because she has ascertained that there are liens on the lot first set aside. 
ffolden y. Pinney, 6 Cal. R , 234. 

As to whether buildings used for hotels, stores, etc., are susceptible of dedi- 
cation to homestead purposes. Quciere, Qea/ry r. Eagfbrock, 6 Cal. R., 457. 

A husband and wife may, by joining in a conveyance of an undivided por- 
tion of premises in which a homestead right is acquired, destroy its character 
as a homestead. KeUersberger v. Kopp^ 6 Cal. R., 563. 

The homestead right is not affected by the foreclosure of a mortgage signed 
by the husband alone. Cook v. Klinky 7 Cal. R., Oct term ; Revcdk v. Kra- 
mer, 7 Cal. R., July term, and see Von Reynegam v. Kramer ^ 7 Cal. R., July 
tenn. 

§ 125. When prop^y shall have been set apart for the 
use of the family in aecordance with the provisions of this to whom th* 
chapter, if the deceased shall have left a widow and no mi- trbS^S^**^* 
nor child, such property shall be the property of the widow. 
If be shall have left also a minor child or children, the one- 
half of such property shall belong to the widow and the re- 
mainder to the child, or in equal shares to the children, if 
th«re be more than one. If there be no widow, the whole 
shall belong to the minor child or children. 

[Forms No. 69, 71 and 72, Appendix.] 
See Sec. 127, post. ^ 

§ 126. If, on the return of the inventory of any intestate 
estate, it shall appear that the value of the whole estate egtet? ^aSeT^nit 
does not exceed the sum of five hundred dollars, the probate ^^^'^ ^^' 
court shall, by a decree for that purpose, assign for the use 
and support of the widow and minor children of the intes- 
tate, or for the support of the minor child or children, if 
there be no widow, the whole of the estate, after the pay- 
ment of the funeral charges and expenses of the administra- 
tion, and there shall be no ftirtber proceedings in the ad- 
ministration unless further estate be discovered. 

[Form No. 71, Appendix.] 

§ 127. If the widow has a maintenance derived from her 
own property equal to the portion set apart to her by the h«^ maintenance. 
one hundred and twenty-fifth and one hundred and twenty- 
sixth [124th and 125th ?J sections of this act, the whole pro- 
perty so set apart shall go to the minor child or children. 

[Form No. 71, Appendix.] 



CHAPTER VI. 

OF CLAIMS AGAINST THE ESTATE. 

§ 128. Every executor or administrator shall, immediately 
^Nouce to credi- after his appointment, cause to be published in Some newspa- 
per, printed in the county, if there be one, if not, then in 
such newspaper as may be designated by the court, a notice 
to the creditors of the deceased, requiring all persons hav- 
reSSted ^thiJ ^^S claims against the deceased to exhibit them with the ne- 
ten months. ccssary vouchcrs, within ten months after the date of the 
notice, to such executor or administrator, at the place of his 
residence or transaction of business, to be specified in the 
notice. Such notice shall be published as often as the judge 
long.*^ '^' ^^ may deem necessary, but not less than once a week for four 
weeks. 

[Fonn No. 74, 75, Appendix.] 

Co withaffl. § ^^^' -^f^®^ ^^® notice shall have been published, a copy 
^^t, etc., to be thereof, together with an affidavit attached thereto, of the 
publisher or printer of the paper in which the same was pub- 
lished, shall be filed by the executor or administrator. 

[Form No. 76, Appendix.] 



When barred. 



§ 130. If a claim be not presented within ten months after 
the first publication of the notice, it shall be barred forever ; 
provided, if it be not then^due, or if it be contingent, it may 
be presented within ten ninths after it shall become due or 
absolute. \ 

Compare sec. 246. 

A claim not presented to the administrator within the time allowed, is bar- 
red, not only as against him, but as against heirs, and all other creditors o^ 
the estate. Graham v, Yining, 2 Texas R., 433. 

To be support- § 131. Evcry claim presented to the administrator shall be 

etc. ^ supported by the affidavit of the claimant that the amount is 

justly due, that no payments have been made thereon, and 

that there are no offsets to the same to the knowledge of the 



CLAIMS AGAIKST THfi ESTATS. ' 68 

claimant. The oath may be taken before any officer author- vouchew. 
ized to administer oaths. The executor or administrator 
may also require satisfactory vouchers to be produced in 
support of the claim. 

[Forms No. 76, 77, Appendix and see errata—foTtn No. 77.] 

§ 131. A. (Sec. 1.) Any probate judge may present a claim 
against the estate of any deceased person for allowance, to ciaim against 
the executor or administrator of such estate ; and if theju^^!^^^"^** 
executor or administrator allows such claim, he shall in wri- 
ting, designate some probate judge of an adjoining county ; 
and the probate judge so designated by the executor or ad- 
ministrator, shall, upon the presentation of such claim to 
him, have the same power to allow or reject it, as he would 
have, if the will had been proved, or administration granted 
in his own county ; and the probate judge presenting such 
claim, shall, in case of its rejection by the executor or ad- 
ministrator, or by such probate judge, as shall have acted 
upon it, have the same right to sue in a proper court for its 
recovery, as other persons have, when their claims against 
an estate are rejected, (a.) 

§ 182. When a claim, accompanied by the affidavit requir- 
ed in the precedine: section, has been presented to the execu- 

r o 1 r ^ Allowance or 

tor or administrator, he shall indorse thereon his allowance ^Jfc^on *<> ^ 

' endorsed, eto. 

or rejection, with the day and date thereof. If he allow 
this claim, it shall be presented to the probate judge for his 
approval, who shall in the same manner indorse upon it his 
allowance or rejection. 

[Form No. 76, 77, Appendix.] 

If an administrator indorse on a claim his reasons for rejecting it, he will 
not be permitted to plead, or urge in abatement of the sait, any other reason, 
which goes merely to the sufficiency of the presentation for allowance. Han- 
seU vs. Gregg, 7 Texas R. p. 223. 



ESbct of allow* 



§ 183. Every claim which has been allowed by the execu- 

ITfffepf n 

tor, shall be filed in the probate court, and be ranked among »nee, etc. 
the acknowledged debts of the estate, to be paid in due 
course of administration. 

See Sec. 158, and cases noted. 

The words " and approved by the probate judge," hare probably been omit- 
ted by inadvertence, after the word '' administrator," in the last section. 

— ■ — -• ■■— -■ -^ ■ - — ■ - — ■■ I I ■ .1 -.III -^ 

(a.) Section 1 of act of April U, 1856, (stat. 1856, p. 93.) Inserted here, 
and noted § 131 A, for convenience of reference. 



64 CiiAIMS AGAINST THB B8TATB. 

By oar probate law, claims againat an estate which have been allowed by 
the administrator and the probate jadg^, have the force and effect of judg- 
ments ; and it is error in the probate court to r^ect on the final settlement of 
the administrator's accounts, sums paid by him on claims so allowed. Ded^s 
Esiaie v. Qherke^ 6 Gal. R., 666. But this rule applies only to such 
claims a# cvre dMs (igamit the utaU^ and not to esqpeitjef incurredj or dis- 
hursements made hy the adnUnietratort the policy of the law being merely to 
prevent estates from being squandered in useless litigation. lb. 

There is no doubt, but that the allowance and approval of the claim is a 
qvasi judgment, binding as between the actucU parties. But the heirs of the 
deceased have a right to go behind the allowance and approval, and to require 
proof of the original indebtedness, after petition and notice for the sale of real 
estate to pay debts. 

And on the hearing of such petition, it is error in the probate judge to re- 
fuse to hear testimony that the deceased did not die in the county where the 
estate is being administered ; and also to refuse to allow the heirs to question 
the justice of the claims allowed. Beckett et. al. «. Selover, January term 
1857, where the effect of the allowance and approval of the clum is consider 
ed at length, and cases from the Texas Reports cited. 

§ 184. When a claim is rejected, either by the executor oi* 
Aetioa upon administrator, or the probate jndge, the holder shall bring 
jOjim vhen re- ^^j^ .^ ^j^^ propcr court against the executor or administra- 
tor, within three months after the date of its rejection, if it 
be then due, or within three months after it becomes due 
otherwise the claim shall be forever barred. 

§ 135. No claim shall be allowed by the executor or ad- 
aaim barred ministrator, or by the probate judge, which is barred by the 
bystat.Lim. gtatutc of limitations. 

[Form No. 77, Appendix.] 

It seems that the presentation to the administrator is ihe comm£ncemetU qf 
a suit upon it, and stops the running of the statute. Beckett v. Selover, 7 Cal. 
R. p. 215. 

§ 186. No holder of any claim against an estate, shall 
ButtntainabTe^m maintain any action thereon, unless the claim shall have been 
eiaim pretented. g^^^ presented to the executor or administrator. 

As to actions against administrators etc., see sec. 195, and cases noted. 

Mortgages, and liens of record, form no exception to the rule prescribed by 
sec. 136. The claims secured by them must have been presented to the execu- 
tor or administrator, and rejected by him before an action can be maintained 
on them. Ellisen v. Halleck, 6 Cal. 386, and see Harwood «. Harye et. oL 
Oct. term, 1857. 

§ 137. The time during which there shall be a vacancy in 
miSistoitlon! *^' the administration, shall not be included in any limitations 
herein prescribed. 



CLAIMS AGAINST THE ESTATE. 65 

§ 1S8, If an action be pending against the testator or intes- 
tate at the time of his death, the plaintiff shall in like man- if action pend 
ner present his claim to the executor or administrator for death, 
allowance or rejection, authenticated as required in other 
cases, and no recovery shall be had in the action, unless 
proof be made of the presentment. 

[Forms No. 76 and 77, Appendix.] 

§ 139. Whenever any claim shall be presented to any 
executor or administrator, or to the probate judge, and hCj^^^J^™ auowed 
shall be willing to allow the same in part, he shall state in 
his indorsement the amount he is willing to allow. If the 
creditor refuse to accept the amount allowed, in satisfaction 
of his claim, he shall recover no costs in any action which ^gj*/""^ *° ^^' 
he may bring against the executor or administrator, unless 
he shall recover a greater amount than that offered to be 
allowed- 

[Form No. 77, Appendix.] 
See Ha/nseU v. Gregg, noted under section 132. • 

§ 140. The effect of any judgment rendered against any 
executor or administrator, upon any claim for money against ment against ex- 
the estate of his testator or intestate, shall be only to estab- ^"^ ''* °* 
lish the claim in the same manner as if it had been allowed 
by the executor or administrator, and the probate judge; and 
the judgment shall be that the executor or administrator pay 
indue course of administration, the amount ascertained to 
be due. A certified transcript of the judgment shall be filed 
in the probate court. No execution shall issue upon such 
judgment, nor shall it create any lien upon the property of 
the estate, or give to the judgment creditor any priority of 
payment. 

Compare Sec. 133, ante, and cases noted. 

§ 141. When any judgment has been rendered against the 
testator or intestate, in his lifetime, no execution shall issue when judgm't 
thereon after his death ; but it shall be presented to theed'a^Sat testi- 
executor or administrator as any other claim, but need not{Jfetime' ^"^ ^ 
be supported by the afl&davit of the claimant ; and if justly 
due and unsatisfied, shall be paid in due course of adminis- 
tration ; provided, however, that if the execution shall have 
been actually levied upon any property of the deceased, the 

same may be sold for the satisfaction thereof, and the officer 

9 



66 CLAIMS AGAINST THE ESTATE. 

making the sale, shall account to the executor or administra- 
tor, for any surplus in his hands. 

§ 142. If the executor or administrator doubt the correct- 
ness of any claim presented to him, he may enter into an 

Agreement to » m. > ^ 

refer claim. agreement in writing with the claimant, to refer the matter 
in controversy to some disinterested person to be approved 
by the probate judge. Upon filing the agreement and ap- 
proTal of the probate judge, in the oflSce of the clerk of the 
district court for the county in which the letters testamen- 
tary or of administration were granted, the clerk shall, 
either in vacation or in term, enter a rule referring the mat- 
ter in controversy to the person so selected. 

[Forms No. 78, 79, Appendix.] 

§ 143. The referee shall thereupon proceed to hear and 
determine the matter, and make his report thereon to the 
court in which the rule for his appointment shall have been 
uponreS'r^c?.*^'' cntcred. The same proceedings shall be had in all respects; 
the referee shall have the same powers — be entitled to the 
same compensation, and subject to the same control, as if the 
reference had been made in an action in which such court 
might by law direct a reference. The court may set aside 
the referee or appoint another in his place, or may set aside 
or confirm the report, and adjudge costs, as in actions against 
executors and administrators, and the judgment of the court 
thereon shall be valid and efi'ectual, in all respects, as if the 
same had been rendered in a suit commenced by ordinary 
process. 

§ 144. When a judgment has been recovered, with costs, 
Liabiuty of ex- against any executor or administrator, the executor or ad- 
colrts*'' * ^' ^' ministrator shall be individually liable for the costs, but they 
shall be allowed him in his administration accounts, unless 
it shall appear that the suit or proceeding in which the costs 
were taxed shall have been prosecuted or resisted without 
just cause. 

Executors and administrators are individually responsible for costs recov- 
ered against them in every case ; but they shall be allowed them in their ad- 
ministration accounts, except when it appears that the action has been prose- 
cuted or resisted without just cause. The provisions of the 144th section of 
the Probate Act, are not limited to settlements in the probate court. Mictxt v. 
Graham, 6 Cal. R., 667. 

§ 145. If the executor or administrator, is himself a 



CLAIMS AGAINST THE ESTATE. 67 

creditor of the testator or intestate, his claim, duly authen- ciaim by exe- 
ticated by aflSdavits, shall be presented for allowance or tote.' * 
rejection to the probate judge, and its allowance by the 
judge shall be sufficient evidence of its correctness. 

§ 146. If any executor or administrator shall neglect for ^otiS^^S) SST- 
two months after his appointment, to give notice to credi-®"- 
tors as prescribed in this chapter, it shall be the duty of the 
court to revoke his letters. 

[Form No. 80, Appendix.] 

§ 147. At the same term at which he is required to return to retlJra^a stete- 

•I • • . ai 1 ji»*j.A 1.111 in6nt of claims. 

nis inventory, the executor or administrator shall also re- 
turn a statement of all claims against the estate which shall 
have been presented to him, when required by the court ; 
and from term to term thereafter, shall present a statement 
of claims subsequently presented to him. In all such state- 
ments he shall designate the names of the creditors, — the na- 
ture of each claim, — when it became due, or will become 
due — and whether it was allowed or rejected by him. 

Cases hea/ring upon the General Subjects of Chapter VI, 

Where an administrator verbally admits a claim to be good, and thereby 
induces a third person to take it, he will be estopped from interposing a de- 
fence against it in the hands of a third person. Swenson v. Walker ^ 3 Texas 

The claim of an executor or administrator against the deceased, has no pri- 
ority over the demands of other creditors, and he cannot retain assets of the 
estate in payment of his own demand until it has been proved and allowed by 
the Surrogate. Treai v. Fortune , 2 Bradford's R., 116. 

The advertisement for claims, protects the executor in case of distribution 
after the advertisement has expired. Clayton v. Wa/rdeUf 2 Bradford's R., 1. 

The object of the presentation of the claim to the administrator is to afford 
him an opportunity to admit it, if just, and settle it in due course of adminis- 
tration. It is enough that it be so presented as to inform the administrator of 
the nature of the claim. IHgg v. Moore, 10 Texas R., 197. 

Where no objection is taken to the want of certainty in the presentation of 
a claim to an administrator, either in the rejection of the claim or in the ans- 
wer in the court below, such objection cannot be raised in the supreme court, 
not even in support of the judgment of the court below. lb. 

See Hansen v. Qregg, noted under section 132. 

Although a claim be an open account, it bears interest from the date of its 
approval ; the allowance and approval a^re a judgment. Firdey v. CaroiherSy 
9 Texas R., 617. 

The presentation to, and rejection by, one of several administrators, is suffi- 
cient to authorize an action upon it. Dean v. Duffield, 8 Texas R., 225. 

The approval or disapproval of the probate judge, should be indorsed in 
writing upon the claim. Where not so indorsed, the prima fa^de presump- 



68 SALES BT EXBCUT0B8, BTG. 

tioQ is that it does not exist. As to whether in any case it might be proved 
by evidence aliunde — quaere. Danzey v. Sufinney, 7 Texas R., 617. 

Proceedings in the probate court cannot be taken by a creditor whose claim 
has not been allowed and approved ; and, it seems, a proceeding commenced 
before such approval cannot be cured by a subsequent approval, I b. 

A claimant is estopped by his own act, in presenting his claim to the ad- 
ministrator for allowance, from denying that he had notice of the grant of 
administration ; and in such a case it is immaterial whether publication waa 
made or not. lb. 

Where the evidence of a claim consists of a mortgage alone, it must be 
presented for allowance and approval ; but where a note or bond has been 
executed, it would seem that the aUowaxice and approval of such note or bond 
would be sufficient. lb. Quaere, 

It may well be questioned, if a mortgagee could not sue for ike foredosure 
of the mortgage without having presented it to the administrator. But he 
could not sue for the debt without complying with the forms and requisitions 
of the statute. Cole v. Robertson, 6 Texas R., 366. 

If an account against an estate has been allowed and approved, it cannot be 
questioned, so far as the creMov is concerned, in iheprobaie court. But if 
allowed by mistake, or through fraud, the remedy by the administrator is by 
Buit in the district court. NeiU v. Hodge, 5 Texas R., 487. 

But see the opinion in Beckett v. Selover, 7 Gal. R., at pp. 238, 239. 



der 



CHAPTER VII. 

SALES OF PROPERTY BY EXECUTORS OR ADMINISTRATORS, (a.) 

Sale to be nn- § 148. No Sale of any property of an estate shall be yalid, 
unless made under order of the probate court. 

But see Sec. 178. 

§ 149. All applications for orders of sale shall be by pe- 
Petition fortition in writing, in which shall be set forth the facts show- 
ing the sale to be necessary ; and upon the hearing, any per- 
son interested in the estate may file his written objections, 
which shall be heard and determined. 

[Forms No. 81 85, 88, 91, 93, and 97, Appendix.] 
See Sec. 168, infra, and cases noted. 
On application to sell real estate, the heirs or devisees may oppose the ap- 

(a.) See cases noted at the end of the chapter. 



sale. 



1 



SALES BY SXECUTOSS, STO. 69 

plication by ati;ackiag the claims of the creditors ; they may set ap the statute 
of limitations. Skedmore v. Rotnaine, 2 Bradford's R., 122. 
See Beckett v. Selover, noted under section 133, supra, 

§ 150. At the term of .the court to which the inventory is 
returned, the executor or administrator shall apply for an saieofperuh- 
order to sell the perishable property of the estate, and so * *^ ^^^ ^' 
much other property as may be necessary to be sold to pay 
the allowance made to the family of the deceased. If claims 
against the estate have been allowed, and a sale of property 
shall be necessary for their payment, or of the expenses of 
the administration, he shall also apply for an order to sell 
so much of the personal property as shall be necessary. He ^ ^ penonai 
shall make a similar application, either in vacation or term, mej^t of debts, 
giving five days previous notice in a newspaper or by the 
usual public posting, from time to time, so long as any per- 
sonal property remains in his hands, and a sale is necessary 
to pay any demands against the estate. 

[Forms No. 81 to 95, Appendix.] 

§ 151. If it appear that a sale is necessary, the court shall if saieordenNi. 
order it to be made. In making such sales, the court shall Tow.**^'^^ 
order such articles as are not necessary for the support and 
subsistence of the family of the deceased, or are not spe- 
cially bequeathed, to be first sold. Articles so bequeathed, artid^"^**'** 
shall not be sold until the residue of the personal estate has 
been applied to the payment of the debts. 

In connection with the last clause of the section, in regard to the sale of 
bequeathed articles, see sections 176, 177, 180 and 243, post, 

§ 152. The sale of personal property shall be mad6 at 
public auction, and after public notice given for at least 
ten days, unless for good reason shown, the probate judge 
shall order a private sale ; but no private sale shall be PHyate sale, 
effectual for any purpose till the same shall be approved by 
the probate judge. Public sales of such property shall be 
made at the court house door, — at the residence of the de- 
ceased, or at some other public place, to be mentioned in the . . 

,. t 1 , ,, , T n Property to be 

notice ; and no sale shall be made of any property which is p^sent when 
not present at the time of selling, (a.) 

[Fonns No. 83, 84, 90, 92, Appendix.] 

(a.) Amended May 7, 1855. See Statutes 1865, p. 299. The section as it 
originally stood in the act of May 1, 1851, was as follows :— " Sec. 152. Sale of 
personal property shall be made at public auction, and after public notice 
given for at least ten days. The sale may be made either at the court house 
door— at the residence of the deceased, or at some other public place." Stat- 
ute 1851, p. 467 J Compiled Laws, p. 398 ; Statute 1860, p. 389. 



70 BALES BY EXECUTORS, ETC. 

§ 153. The notice shall be giyen by notices posted in the 
Notice how [three ?] public places in the county, or by publication in a 
newspaper, if the judge ghall so order, in which shall be 
specified the time and place of sale. • 

[Form No. 82, Appendix,] . 

§ 164. When the personal estate in the hands of theexecu- 
saie of real ee- toF OF administrator shall be insufficient to pay the allow- 
ance to the family, and all the debts and charges of the 
administration, the executor or administrator may sell the 
real estate for that purpose, upon the order of the county 
judge. 

[Fomi No. 97, Appendix.] 
See sections 164 and 179, post, 

§ 155. To obtain such order, he shall present a petition to 
whAfto conJSl the probate court, setting forth the amount of personal 
estate that has come to his hands, and how much thereof, if 
any, remains undisposed of, — the debts outstanding against 
the deceased, as far as the same can be ascertained — a de- 
scription of all the real estate of which the testator or in- 
testate died, seized, and the condition and value of the res- 
pective portions and lots, — the names and ages of the devi- 
To be verified, sccs, if any, and of the heirs of the deceased, — which peti- 
tion shall bo verified by the oath of the party presenting 
the same. 

[Forms No. 97 and 112, Appendix.] 

§ 156. If it shall appear by such petition that there is not 
sufficient personal estate in the hands of the executor or ad- 
orde to show ^^^^^strator, to pay the allowance to the family, the debts 
cause. outstanding against the deceased, and the expenses of ad- 

ministration, and that it is necessary to sell the whole or 
some portion of the real estate for the payment of such 
debts, the probate judge shall thereupon make an order di- 
recting all persons interested, to appear before him at a time 
and place specified, not less than four, nor more than ten 
weeks from the time of making such order, to show cause 
why an order should not be granted to the executor or 
administrator, to sell so much of the real estate of the de- 
ceased as shall be necessary to pay such debts. 

[Forms No. 98, 113, Appendix.] 

§ 157. A copy of such order to show cause, shall be per- 
Notioeof appii- gonally served on all persons interested in the estate, at least 

eation to be serv- •' ^ ' 

ed, or published, ^qj^ (j^ys bcforc tho time appointed for hearing the petition, 



BALES BY EXECUTORS, ETC. 71 

or shall be published at least four successive weeks, in such 
newspaper as the court shall order ; provided, however, if all 
persons interested in the estate, shall signify in writing, their 
assent to such sale, the notice may be dispensed with. 

[Form No. 98, Appendix.] 

Whether the want of a sufficient notice of an application to sell the real 
estate, can be set up as a defence in an action by the purchaser to recover 
possession of the property — quaere, Haynes v. Meeks^ Jan. term, 1868. 

But seniblej that a direct proceeding to set aside the sale, would be prefer- 
able. It may be a matter of grave doubt whether a sale of real estate with- 
out sufficient notice, would be void, or merely voidable. The sale being a 
proceeding in rem, there may not be any sufficient reason for holding it void 
by reason of a defective notice. lb. 

And see same case fully noted at the end of this chapter. 

§ 158. The probate judge, at the time and place appointed 
in such order, or at such other time as the hearing may be ad- 
journed to, upon proof of the due service or publication of a 
copy of the order, or upon filing the consent in writing to '^^ hearing, 
such sale of all parties interested, shall proceed to the hear- 
ing of such petition ; and if such consent be not filed, shall 
hear and examine the allegations and proofs of the petition- 
ers, and of all persons interested in the estate, who may 
oppose the application. 

[Form No. 110, Appendix.] 
See Sec. 149, supra. 

The heirs or devisees may make the same defense to the claims sought to be 
established before the Surrogate, as they could before another tribunal. Fer- 
guson V. Broome^ 1 Bradford's R., 10, 

The heirs have a right to go behind the allowance of claims against the 
estate by the administrator and the approval of the county judge, and to re- 
quire proof of the original indebtedness, after petition and notice, for the sale 
of real estate to pay debts. Beckett et al.^ v. Selover^ 7 Cal. R., 215. 

§ 159. If any of the devisees or heirs, of the deceased are Guardian of 
minors and have a general guardian in the county, the copy ^**"****'®'*'* 
of the order shall be served upon the guardian. If they 
have no such guardian, the court shall, before proceeding to 
act upon the petition, appoint some disinterested person 
their guardian, for the sole purpose of appearing for them,»ppoStJd.''^ 
and taking care of their interests in the proceedings. 

[Form No. 117, Appendix.] 

§ 160. The executor or administrator may be examined witnesses, etc. 
on oath, and witnesses may be examined by either party, and 
process to compel their attendance and testimony, may be 



Order of sale. 



T2 SALES BY BXECUTOBS, ETC. 

issued by the probate judge, in the same manner, and with 
like effect as in other causes. 

§ 161. If it shall appear to the court that it is necessary 
o 1 , _. to sell a part of the real estate, and that by a sale of such 

<*aie ofp&rt or *^ 

whole of eeute. ^^2^^^^ the rcsidue of the estate, or some specific part or 
piece thereof, would be greatly iiyured, the court may autho- 
rize the sale of the whole estate, or of such part thereof as 
may be judged necessary, and most for the interests of all 
concerned. 

§ 162. If the probate judge fehall be satisfied, after a full 
hearing upon the petition, and an examination of the proofs 
and allegations of the parties interested, that a Falc of the 
whole or some portion of the real estate, is necessary for 
the payment of the allowance of the family, and all valid 
• claims against the deceased, and charges of administration, 
or if such sale be assented to by all the persons interested, 
he shall make an order of sale, authorizing the executor or 
administrator to sell the whole, or so much and such parts of 
the real estate described in the petition, as he shall judge 
necessarj& or beneficial. 

[Forms No. 99, 111, 114 and 116, Appendix.] 
See Sec. 73, ante, and see form No. 38, Appendix, 

§ 163. The order shall specify the lands to be sold and 
J*b^^o*i!? ^^^^ the terms of sale, which may be either for cash or on a credit 
not exceeding six months, as the court may direct. If it ap- 
pears that any part of such real estate has been devised, and 
not charged in such devise with the payment of debts, the 
Lands devised. ^^^^^ gj^^^jj ^^^^^ ^j^^^^ ^^^^ desccndcd to hcirs to be sold, be- 
fore that so devised. 

§ 164. If the executor or administrator shall neglect to 

Application by ^VV^J ^^^ ^^ ordcr of sale whenever it may be necessary, 
person interested a^j^y pgpgQjj interested in the estate may make application 

therefor in the same manner as the executor or administra- 
tor, and notice thereof shall be given to the executor or ad- 
ministrator before the hearing. 

[Form No. Ill, Appendix.] 

Proceedings to compel sale of real estate for payment of debts, cannot be 
instituted by a creditor until the executor or administrator has accounted. 
Skidmore v. Romainej 2 Bradford's R., 122. 



SALES BY EXECUTORS, ETC. 73 

§ 165. Upon the making of such order, a certified copy of 
the order of sale shall be delivered by the court to the Authority to 
executor or administrator, who shall be thereupon autho- 
rized to sell the real estate as directed. 



mU. 



Notice of sale. 



§ 166. When a sale is ordered, notice of the time and 
place of holding the same, shall be posted up in three of the 
most public places in the county in which the land is situa- 
ted, and shall be published in a newspaper, if there be one 
printed in the same county, and if there be none, then in 
such paper as the court may direct, for three weeks succes- 
sively next before such sale, in which notice the lands and 
tenements to be sold, shall be described with common cer- 
tainty. 

[Form No. 108, Appendix.] 

§ 167. Such sale shall be in the county where the lands ot'^e. ''''^ ^^'^ 
are situated, at public auction, between the hours of nine 
o'clock in the morning and the setting of the sun the same 
day. 

§ jl68. The executor or administrator shall, when the sale 
is made upon a credit, take the note or notes of the pur- if on credit. 
chaser for the purchase money, with a mortgage on the 
property to secure their payments. 

[Forms No. Ill, 114 and 116, Appendix.] 

§ 169. The executor or administrator making any sale of Retumofsaie, 
any real estate, shall, at the next term of the court thereafter, ®*°' 
make a return of his proceedings to the probate judge, who 
shall examine the same, and if he shall be of opinion that 
the proceedings were unfair, or that the sum bid is dispro- 
portionate to the value, and that a sum exceeding such bid, 
at least ten per cent., exclusive of the expenses of a new 
sale, may be obtained, he shall vacate such sale, and direct Re-8aie,when 
another to be had, of which notice shall be given, and the**^ ^^ ' 
sale shall be in all respects conducted as if no previous sale 
had taken place. 

[Forms No. 100, 104, 108, 102 and 103, Appendix.] 

§ 170. When the return of the sale is made, any person 
interested in the estate may file written objections to the ^^^®*^**®'"' 
confirmation of the sale, and may be heard, and may produce 
witnesses in support of his objections. 

[Forms No. 105 and 106, Appendix.] 

10 



74 



SALES BY RZEGUTOBS, ETC. 



Effect of order. 



§ 171. If it appear to the court that the sale was legally 
coBflimfttion. made and fairly conducted, and that the sum bid was not 
disproportionate to the value of the property sold, or if dis- 
proportionate, that a greater sum, as above specified, cannot 
be obtained, the court shall make an order confirming the 
sale, and directing conveyances to be executed ; and such 
sale, from that time, shall be confirmed and valid, and a cer- 
tified copy of the order authorizing the sale, and of the order 
confirming the same and directing conveyances to be execu- 
To be recorded, ted, shall bc rccordcd in the office of the recorder of the 
county within which the land sold is situated, (a.) 

[Fonns No. 101, 106, 107, 116, 118 and 96, Appendix.] 

See sections 186, 187, and compare section 183. 

From the language of this section, it would seem that the sale is complete 
upon the order of confirmation being made. Whether the purchaser would be 
entitled to the rents and profits of the real estate from the time of confirma- 
tion, and before the execution and delivery of the deed, in case of such exe- 
cution and delivery being for any cause delayed — Quaere, 

§ 172. Such conveyances shall thereupon be executed to 
the purchaser by the executor or administrator. They shall 
refer to the orders of the probate court, authorizing and 
confirming the sale of the property of the testator or intes- 
tate, and directing conveyances thereof to be executed, and 
to the record of such orders in the office of the county re- 
corder, and such reference shall have the same eflfect as if 
the said orders were at large inserted in the conveyance. 
The conveyances so made, shall be deemed to convey all the 
right, title, interest, and estate of the testator or inte&taie, 
in the premises at the time of his death. (J.) 

[Form No. 119, Appendix.] 

§ 172. A. (Sec. 3.) This act shall take effect from and 
after its passage, and shall also apply to all cases wherein 
either an order of sale or to order confirming a sale, and 



Conveyance. 



Efifect of. 



(a.) Amended Feb. 1, 1856. Statutes 1856, p. 20, sec. 1. The amendment 
added all that portion of the present section i^ter the words " confirmed and 
valid." Original section, Statute 1851, p. 470 *, Compiled Laws, p. 401. 

(b.) Amended Feb. 1, 1856. Statutes 1856, p. 20, sec. 2. The original section 
was as follows : — " Sec. 172. Such conveyances shall thereupon be executed to 
the purchaser by the executor or administrator. They shaM contain and set 
forth at la/rgey the original order, authorizing a sale, and the order confirming 
the same, and directing the conveyance, and they shall be deemed to convey 
all the estate, rights and interest m the premises, of the testator or intestate, 
at the time of his death." Statute 1851, p* 470 ; Compiled Laws, p. 401 ; and 
Statute 1850, p. 391. 



BALES BY BXECUTOBS, ETO. 75 

directing a conveyance to be executed, or both, may have 
been heretofore made, and wherein the conveyance has not 
been executed, at the date of the passage of this act. (a.) 

Sales by executors aad administrators, under our probate system, are judi- 
cial ; and the contract need not be in writing subscribed by the parties. The 
statute of frauds does not apply to such a case, the sale being made by the 
court. HaMeck et aJL^ y, Chiy^ Jan. term, 1858. 

The only effect of an administrator's deed, is to convey to the purchaser 
the title of the deceased. Such a deed can contain no warranty of the title. 
The bidder is bound to examine the title for himself; and the rule of ctweai 
emptor applies to these sales. Ih. 

§ 173. Before any order is entered confirming the sale, it 
shall be proved to the satisfaction of the court, that notice ^e^d?' ^""^^^ 
was given of the sale as herein prescribed, and the order of 
confirmation shall state that such proof was made. 

[Forms No. 108, 101, 107, and 118, Appendix.] 
Compare sections 63 and 238. 

§ 174. If at the time appointed for the same, the executor 
or administrator shall deem it for the interest of all persons of stto?"™**"* 
concerned therein, that the sale shall be postponed, he may 
adjourn the same from time to time, not exceeding in all 
three months. 

§ 175. In case of the adjournments, notice thereof shall 
be given by a public declaration at the time and place first . Notice of »d- 
appointed for the sale, and if the adjournment be for more 
than one day, further notice shall be given, by printi^g, 
[posting?^^ or publishing the same, or both, as the time and 
circumstances may admit. 

§ 176. When a testator shall have given any legacy by 
will that is effectual to pass or charge real estate, and his saieof reaiM- 
goods, chattels, rights and credits, shall be insufficient to cy? ^ ^^ ^^^ 
pay such legacy, together with his debts and the charges of 
administration, the executor or administrator with the will 
annexed, may obtain an order to sell his real estate for that 
purpose, in the same manner and upon the same terms and 
conditions, as are prescribed in this chapter, in case of a 
sale for the payment of debts. 



(a.) Sec. 3, of the act of February 1, 1856, Statute 1956, p. 21, sections 1 
and 2, amend the ITlst and 172d sections of the probate act respectively ; and 
Sec. 3, declares when those sections as amended shaU take effect, etc. 



76 BALES BT BXBCUTOBS, ETC. 

§ 177. If the testator shall make provision by his will, or 
proTisions of designate the estate to be appropriated for the payment of 

will to be follow- « • i i . .1 i» -i • • 1^ x«. t* *t 

•d. his debts, the expenses of administration or family^xpenses, 

they shall be paid according to the provisions of the will, 
and out of the estate thus appropriated, so far as the same 
may be sufGicient. 

§ 178. When such provision has been made, or any prop- 

When executor, * ' ^ *r r 

etc., may sell erty dircctcd by the will to be sold, the executor or adminis- 

withottt order of "^ 

court. trator with the will annexed, may proceed to sell without 

the order of the probate court, but he shall be bound as an 
administrator, to give notice of the sale, and to return ac- 
counts thereof to the court, and to proceed in making the 
sale in all respects as if it were made under the order of 
the court, unless there are special directions given in the 
will, in which case he shall be governed by such directions. 

[Form No. 96, Appendix.] 

§ 179. If the provision made by the will, or the estate ap- 
made by will, in- propriated, be not sufficient to pay the debts and expenses 
of administration and family expenses, such part of the 
estate as shall not have been disposed of by the will, if any, 
shall be appropriated for that purpose according to the pro- 
visions of this act. 

§ 180. The estate, real and personal, given by will to any 
Jd'babi^or^i^- l^gs-tees or devisees, shall be held liable to the payment of 
ment of debts, dcbts, cxpcnscs of administration, and family expenses, in 
proportion to the value or amount of the several devises 
or legacies, except that specific devises or legacies may be 
exempted, if it shall appear to the court necessary, to carry 
into effect the intention of the testator, if there shall be 
other sufficient estate. 

See sections 151, 176 and 177. 



§ 181. When the estate given by any will has been sold 
amoS"^"^"^'^^ *^® payment of debts and expenses, all the devisees and 
®**^' legatees shall be liable to contribute according to their 

respective interests, to any devisee or legatee from whom 
the estate devised to him may have been taken for the pay- 
ment of debts or expenses ; and the probate court, when 
distribution is made, shall, by decree for that purpose, settle 



SALES BY EXBCUTOES, ETC. 77 

the amount of the several liabilities, and decree how much 
each person shall contribute. 

[Form No. 176, Appendix.] 
See Sec. 258. 

§ 182. If a deceased person, at the time of his death was 
possessed of a contract for the purchase of lands, his inte- 
rest in such land, and under such contracts, may be sold ouj^^^^*^*®"** 
the application of his executor or administrator, in the same 
manner as if he had died seized of such land, and the same 
proceedings may be had for that purpose, as are prescribed 
in this chapter, in respect to lands of which he died seized, 
except as hereinafter provided. 

§ 183. Such sale shall be made subject to all payments 
that may thereafter become due on such contracts ; and if 
there be any such payments thereafter to become due, such saie subject to 
sale shall not be confirmed by the probate judge, until the pur- 
chasers shall execute a bond to the executor and [or?] admin- 
istrator for his benefit and indemnity, and for the benefit and 
indemnity of the persons entitled to the interest of the de- Bondabypur- 

•^ * chaser. 

ceased in the lands so contracted for, in double the whole 
amount of payments thereafter to become due on such con- 
tract, with such sureties as the probate judge shall approve. 

[Form No. 120, Appendix.] 

§ 184. Such bond shall be conditioned that the purchaser 
will make all payments for such land, that shall become due 
after the date of such sale, and will fully indemnify the i^nd, etc. 
executor or administrator, and the persons so entitled, 
against all demands, costs, charges, and expenses, by reason 
of any covenant or agreement contained in such contract ; 
but if there be no payments thereafter to become due on 
such contract, no bond shall be required by the purchaser. 

[Forms No. 120, Appendix.] 

§ 185. Upon the confirmation of such sale, the executor or 
administrator shall execute to the purchaser, an assignment 
of the contract, which assignment shall vest in the pur- Assignment of 
chaser, his heirs and assigns, all the right, title, and Iq.®^"*™®*- 
terest, of the persons entitled to the interest of the deceased, 
in the lands sold, at the time of the sale, and such purchaser 
shall have the same rights and remedies against the vendor Effect thereoc 
of such land, as the deceased would have had if he were 
living. 



1 



78 BALES BT KXECtTTORS, ETC. 

§ 186. When any sale is made by an executor or adminis' 
trator, pursuant to the provisions of this chapter, of land 
Where land subjcct to any mortgage or lien, which is a valid claim 
iton^e'to.''^ against the estate of the deceased, the purchase money shall 
be applied after paying the necessary expenses of the sale, 
first to the payment and satisfication of the mortgage, and 
the residue in due course of administration. 

§ 187. In all cases in which land is sold by an executor 
sale tofSSil *'or administrator, the necessary expenses of the sale shall be 
first paid out of the proceeds. 

§ 188. If there shall be any neglect or misconduct in the 
proceedinffs of the executor in relation to any sale, by 

Miscondact in *^ , * m 

Bale. which any person interested in the estate shall suffer dam* 

ages, the party aggrieved may recover the same in a suit 
upon the bond of the executor or administrator, or other- 
wise, as the case may require. 

§ 189. Any executor or administrator who shall fraudu- 
lently sell any real estate of his testator or intestate, con- 
■aiea!^"^"***^* trary to the provisions of this chapter, shall be liable in 
double the value of the land sold, as damages, to be recov- 
ered in an action by the person having an estate of inheri- 
tance therein. 

§ 190. No action for the recovery of any estate, sold by 

V an executor or administrator under the provisions of this 

8citoS"b"^heif Chapter, shall be maintained by any heir or other person 

®*«- claiming under the deceased testator or intestate, unless it 

be commenced within three years next after the sale. 

§ 191. The preceding section shall not apply to minors 
tionnottoi^y Or othcrs uuder any legal disability to sue, at the time 
°"' ® °- vhen the right of action shall first accrue ; but all such per- 
sons may commence such action at any time within three 
years after the removal of the disability. 

Executor, etc^ § l^^. Wheucver a sale has been made by an executor or 

Sf SiSir'"*'*'"''* administrator, of any property of the estate, real or personal, 

it shall be his duty to return to the probate court, at its next 

term thereafter, an account of sales verified by his aflSdavit. 

If he neglects to make such return, he may be punished by 

How enforced, attachment, or his letters may be revoked, one day's notice 



SALES BY IXBCUTOBS, ETC. 79 

having been first given him, to appear and show cause why 
such attachment should not issue, or such revocation should 
not be made. 

[Forms No. 66 and 66, Appendix.] 

S 193. No executor or administrator shall directly, or in- ^Executor^etc., 

^ •' ' shall not pur- 

directly purchase any property of the estate he represented. ^J^^^tf "'^'^^ 

Where an administrator purchases land at a judicial sale, made to satisfy a 
claim in favor of the estate which he represents, and causes the purchase 
money to be credited on the claim, the purchase enures to the benefit of the 
estate, and after the close of the administration, the heirs may recover the 
land, notwithstanding the administrator may have accounted for the purchase 
money in the final settlement of his accounts, and sold the land to a third per- 
son having notice of the facts. McCoy v. Crawford, 9 Texas R., 353. 

A purchase made by an administrator at his own sale, is fraudulent in law, 
and void, and it is not error so to instruct a jury. Ha/rdy v. De Leon, 5 
Texas R., 212. 

Cases hearing upon ike maMers treated of in Chapter' VII., not noted under 

ike preceding sections. 

Sales of real estate must be conducted in strict compliance with the law, and 
the records of the proceedings may be ofibred to show that the rules of law 
have not been observed. The purchaser at t^e sale, may show by the records 
of the probate court, that the sale was not made according to the statute, to 
establish a faUure of the considertion of the note, given by him on the sale, 
Laughman v. Thompson, 6 Smedes & Marshall's R., 259. 

A sale not made in accordance with the statutory directions, is void. WUey 
V. White, 3 Stew. & Port., Ala R., 356. 

The sale being advertised for " Friday the 17th," whereas Friday was the 
IQth., and the mistake not being corrected till the last publication, made on 
the day of the sale : ffeld, that the mistake was sufficient to avoid the sale. 
WeUrnan v. Lawrence, 15 Mass. R., 326. 

A sale made twelve years after license (order of sale) granted, held void, 
for that cause. Ih, 

Under a will authorizing " the executors " to sell lands, it was held that a 
sale by one executor, who alone of three appointed, qualified,'^was valid, 
without showing that the others renounced or refused to join. Wood v. 
Sparks, 1 Dev. & Bat., N. Carolina R., 389. 

An administrator, conveying real estate under the order of the court, may 
make the deed to the assignee of the original purchaser. Ewing v. Highy, 
7 Ham., (part Ist.) 198. 

Upon an application by an administrator after the filing of an inventory 
for the sale of the real estate of intestate for the payment of debts, the Sur- 
rogate gains jurisdiction, by the presentation of the petition, as against all 
parties regularly brought into court. Fa/rringion v. King, 1 Bradford's 
B., 182. 

And after jurisdiction has been thus obtained of the subject matter and the 
parties, errors or irregularities in its exercise, cannot be impeached collater- 
ally, but only by appeal ; and after the Surrogate has made an order for the 
sale of the property, it will be presumed that he had sufficient evidence of 
the facts necessary to be ascertained, before making such judicial determina- 
tion. Ih. 



80 POWERS AND DUTIBS OP EXECUTORS, ETC. 

The administrator having made application for the sale of real estate and 
proceedings had, and the order made, he cannot at his option discontinue pro- 
ceedings ; but the creditors may assist on his proceeding, and may apply to 
revive or expedite his proceedings. Jh, 

But see Sec. 164, supra. 

Upon an application to sell real estate of an intestate for the payment of 
his debts, equitable as well as legal demands may be proved and established 
against the estate. Renunck v. Renvnck^ 1 Bradford's R., 234. 

And see CamjpbeU v. Renwick, 2 Bradford's R., 80 ; TVeai v. Forttmey 2 
Bradford's R., 116. 

In proceedings to sell real estate for the payment of debts, it is competent 
for the heirs or devisees to show that the personal estate has not been applied 
to the payment of the debts. But the sale may be ordered by the Surrogate 
upon satisfactory evidence that reasonable diligence has been had, in making 
such application. Skidmore v. Bomainey 2 Bradford's R., 122. 

An executor will not be required to sell lease-hold premises, on which the 
testator built a private vault in which he was interred, before the real estate 
can be sold for the payment of the debts. Ih. 

Where the resignation of an administrator has been improperly accepted, 
and the acceptance is voidable for error, but not void ; the successor of the 
administrator so resigning having sold land under the order of the probate 
court : Jleldy that the purchaser could maintain ^ectment against a grantee of 
the heir ; as, whether the sale be void or voidable, the purchaser who has paid 
the debts of the estate, should have a lien upon the estate, for his purchase 
money. Haynea v. Meeks^ Jan. term, 1858. 



CHAPTER VIII. 

OF THE POWERS AND DUTIES OF THE EXECUTOR AND ADMINIS- 
TRATOR, AND OF THE MANAGEMENT OF THE ESTATE, (a.) 

§ 194. The executor or administrator shall take into his 
Executor, etc. posscssion all the estate of the deceased, real and personal, 
stonVeat^ter and shall collect all debts due to the deceased. 

Compare Sec. 114, mpra* 

" At common law, the real estate of the intestate vested in the heir, and the 
personal estate in the administrator. But under our system, ike true theory 
would seem to be, that both the real and personal estate of the intestate vest 
in the heir, subject to the lien of the administrator for the payment of debts, 

(a.) See cases noted at the end of the chapter. 



POWERS AND DUTIES OP EXECUTORS, ETC. 81 

and the expenses of administration, and with the right in the administrator of 
present possession." 

See opinion, in Beckett et oZ., v. Selover^ 7 Oal. R., 215 ; also, Ha/rwood v. 
Maryej October term, 1867. 

An executor has no authority until the wUl is proved- Tucker v. Storks^ 
Brayt. R., 99. 

§ 195. Actions for the recovery of any property, real or 
personal, or for the possession thereof, and all actions ag^h^t'^eL^u* 
founded upon contracts, may be maintained, by and against ^u^'bil!"^ 
executors and administrators, in all cases in which the same 
might have been maintained, by or against their respective 
testators or intestates. 

See Sec. 131, and cases noted. 

Ab to actions against executors and administrators, see sections 136 to 144, 
inclusive *, section 200, and cases noted at the end of this chapter. 

Actions against an estate cannot be sustained, until the appointment of an 
administrator ; and the complaint must show a presentation to him for pay- 
ment. Ha/rwood v. Marye et al , Oct. term, 1867. 

The administrator, being entitled to the possession of the real property, 
must be made a party to all suits affecting it And in an action to foreclose a 
mortgage, the complaint setting out the note and mortgage sued on, and alleg- 
ing that Smith, one of the mortgagors, was dead, the administrator of Smith 
not being made a party, and it not appearing that any administrator had been 
appointed : Heldj that the complaint was defective for want of proper par- 
ties. Ih. 

Mortgages, and liens of record, form no exception to the rule, requiring a 
presentation of the claim to the administrator, etc., before suit brought. EUi- 
sen V. HaXLeck, 6 Cal. R., 386. 

But see C6U v. Robertson, noted under section 131, ante, 

§ 196. Executors and administrators may maintain actions 
against any person who shall have wasted, destroyed, taken, 
or cartied away, or converted to his own use, the goods of ecutolrt^^f for 
their testator or intestate, in his life time. They may also ^*^*®' **** 
maintain actions for trespass, committed on the real estate 
of the deceased in his life time. 

§ 197. Any person, or his personal representatives, shall ^^^.^^^ ^ 
have an action against the executor or administrator of any™e«totor^^^'* 
testator or intestate, who in his life time shall have wasted, 
destroyed, taken, or carried away, or conveyed to his own 
use, the goods or chattels of any such person, or committed 
any trespass, on the real estate of such person* 

§ 198. "When there was any partnership existing between 

,the testator or intestate, at the time of hia death, and any 

11 



82 POWERS AND DUTIES OF EXECUTOES, ETC. 

Other person, the surviving partner shall have the right to 
Where deeeas- continue in possesslon of the effects of the partnership, and 
^teKBt'^rspart^to settle its business ; but the interest of the deceased shall 
nership. ^^ includcd iu the inventory, and appraised as other prop- 

erty. The surviving partner shall proceed to settle the 
affairs of the partnership without delay, and shall account 
with the executor or administrator, and pay over such bal- 
ances as may from time to time be payable to him, in right 
of his testator or intestate. Upon the application of the 
surviYing part- exccutor Or admiuistrator, the probate judge may, whenever 

ner to account. j .i. • • ^^ ^ 

it may appear necessary, order the surviving partner to ren- 
der an account, and in case of neglect or refusal, may, after 
notice, compel it by attachment. And the executors or ad- 
ministrators, may maintain against him, any action which 
his testator or intestate could have maintained. 

See TkoTnson v. Thomsonj noted anUf pp. 57 and 58. 

§ 199. Any administrator may, in his own name, for the 
Actions on usc aud benefit of all parties interested in the estate, main- 
tor, etc. tain actions on the bond of an executor, or of any former 
administrator of the same estate. 

§ 200. In actions brought by or against executors, it shall 
^^^t.e«cj-not be necessary to join those as parties, to whom letters 
parties ghall havc bccu issued, and who have not qualified. 

§ 201 . Whenever a debtor of a deceased person, shall be 

unable to pay all his debts, the executor or administrator, 

debtT^^*''*^^"* "^^^^ ^^^ approbation of the probate judge, may compound 

with him, and give him a discharge, upon receiving a fair 

and just dividend of his effects. 

§ 202. When there shall be a deficiency of assets in the 

Recovery of hands of au cxccutOT or administrator, and when the de- 

fJnS^'^^di^osed ceased shall, in his life time, have conveyed any real estate, 

of bj testator. ^^ ^^^ rights or interests therein, with intent to defraud his 

creditors, or to avoid any right, debt, or duty of any person, 

or shall have so conveyed such estate that by law the deeds 

Duty of execu- OT convcyauces are void as against creditors, the executor 

mraoeVuitsr"* or administrator may, and it shall be his duty, to commence 

and prosecute Jto final judgment, any proper action for the 

recovery of the same ; and may recover, for the benefit of 

the creditors, all such real estate, so fraudulently conveyed, 

and may also, for the benefit of the creditors, sue and recover 



P0WEB8 AND DITTIES OF EXECUTORS, ETC. 83 

all goods, chattels, rights, or credits, which may have been 
so fraudulently conveyed by the deceased in his life time, 
whatever may have been the manner of such fraudulent con- 
veyance. 

See Danzey ▼. Smithy noted at the end of the chapter. 

§ 203. No executor or administrator shall be bound to 
sue for such estate as mentioned in the preceding section, when executor 
for the benefit of the creditors, unless on application of^'ST^r^Si 
creditors of the deceased ; nor unless the creditors making*^**®"*' 
the application shall pay such part of the costs and ex- 
penses, or give such security to the executor or administra- 
tor therefor as the probate judge shall direct. 

§ 204. All real estate so recovered, shall be sold for the 
payment of debts, in the same manner as if the deceased had 
died seized thereof , upon obtaining an order therefor from estate lecov^d. 
the probate court, and the proceeds of all goods, chattels, 
rights, and credits, so recovered, shall be appropriated in 
payment to the debts of the deceased, in the same manner 
as other property in the hands of the executor or adminis- 
trator. 

Cases hearing 'upon tlie moMers irecUed of in Chapter VIII. ^ not noted under 

the preceding sections. 

Wherein an action against an administrator, the complaint is founded upon 
an instrument alleged to have been executed by the intestate, it is not neces- 
sary under the statute that the administrator should deny the signature of the 
intestate on oath. It must be proved. Heath v. Lent, 1 Cal. R., 410. 

Where a bill is filed in chancery against an administrator, to compel him 
to account, by one who has not been an actual party to a proceeding or settle- 
ment in the probate court, be may totally disregard such proceeding or settle- 
ment. Cla/rke v. Perry, 6 Cal. R., 58. 

Where the administrator of a defaulting tax collector was sued in equity, in 
the name of the People, to compel him to pay into the hands of the county 
treasurer, money collected by intestate as such tax collector : ffeld^ that he 
occupied the position of one who takes possession, without authority, of prop- 
erty belonging to another, and may be treated as trustee de son tort. People 
T. ffoughtgling, 7 CaL R., 348. 

Though defendant be described in such action as administrator (in the cap- 
tion of the complaint), yet if the allegations and facts set forth show that he 
is not sought to be charged as administrator, and no relief is sought against 
the estate, an objection that he is improperly sued in his representative capa- 
city, is untenable. Ih. 

In actions upon joint and several contracts or obligations, an administrator 
cannot be joined with the survivor, because the one is sued de bonis teston 
ioris, and the other de bonis propriis, Humphrey y, Fa20,5 Cal. R., 173 ; May 
V. Hans(m, 6 CaL R., 642. 



84 POWERS AND DUTIES OF EXECUTORS, ETC. 

Where a bill for the foreclosure of a mortgage, made hy the deceased, is 
filed against his executor, and no averment of presentation and rejection of 
the account is made in the bill, it is demurrable. EUuen v. MaUeckf 6 CaL 
R., 386. 

The general right to sue an administrator being taken awaj by the statute, 
the declaration must bring the case within the exception so as to give the 
court jurisdiction. — /6. 

An executor has no authority until the will is proved. Tucker r. Sta/rkea, 
Brayt R., 99. 

One, of two joint executors or administrators, may discharge a debt. GUar 
son V. LtUie, 1 Aiken's R., 28. 

Where there are two executors, each has a right to receive the debts and 
assets, and each is answerable for what he receives. Edmonds v. CransheuWy 
14 Peters' Sup. Ct. R., 166. 

It is sufficient that a claim is presented to, and rejected by, one of several 
administrators, to authorize a suit. Dean v. Duffield, 8 Texas R., 235. 

Joint administrators stand on the same footing, and are invested witii the 
same authority in respect to the administration, as co-executors ; like them, 
,they are regarded in law as one person, and consequently the acts of one, in 
respect to the administration, are deemed to be the acts of all, inasmuch as 
they have a joint and entire authority over the whole property. lb, 

IXnder a will authorizing the " executors " to sell lands, it was held that a 
sale by one executor, who alone of three appointed ^ qualified, was valid, with- 
out showing that the others renounced or refused to join. Wood v. Spa/i'kSj 1 
Dev. So Bat., N. Carolina R., 389. 

Co-administrators stand as sureties for each other ; and if one is misapply- 
ing and squandering the assets of the estate, the liability of the other to be 
seriously injured, is a sufficient ground for relief on general principles of 
equity. Davis v. Thorn, 6 Texas R., 482. 

After an administrator has been discharged, the jurisdiction of the county 
court as to him is terminated, and he cannot be cited to come into court and 
re-state his account. Francis v. Northcoie, 6 Texas R., 186. 

An administrator who has been removed, cannot be required to surrender 
his own vouchers, or any papers necessary to his own defence. Miller v. Jas- 
per, 10 Texas R., 513. 

An administrator is bound to defend the estate of his intestate against 
claims which he does not think just, and he is entitled to charge legal ex- 
penses to the estate. Scoifs Estate, 9 Watts & Serg., 98 ; Da/vis v. Rawlins, 
2 Barring, 126. 

The administrator of a fraudulent vendor, must use proper means to secure 
the property fraudulently sold, to the creditors ; otherwise he will be liable to 
an action by them. Danzy v. Smith, 4 Texas R., 411. 

But see Sec. 203, arvte. 

The acts of an administrator may be set up as an estoppel in pads, to bar 
a recovery by the estate which he represents. Thomas v. Brooks^ 6 Texas 
R., 869. 

In the case of a mortgage debt due by the estate of a deceased person, 
which has been allowed by the executor and the probate judge, there is no 
necessity for a foreclosure against the estate, and the policy of the law being 
against burdening an estate with unnecessary costs, such a bill will not lie. 
Falkner v. Folsom's Executors, 6 Cal. R., 412. 

A judgment against an administrator, though in the form of a common 



CONVETANCBS IN CBBTIAN CASES. 85 

money judgment by default, is valid, its only effect being to establish the val- 
idity of the claim. Chase v. Swain^ Jan. term, 1858. 

A judgment by default may as well be taken against an administrator as 
any other party. Ih. 

The representatives of a deceased joint mortgagor, should not be joined 
with the survivor in a suit to foreclose a mortgage. The mortgagee should 
pursue his remedy against the representative of the deceased mortgagor in 
the probate court, while the remedy against the surviving mortgagor would 
be by foreclosure in the district court. Martin v. Hcurrison^ 2 Texas R., 466, 

The administrator being under onr system, entitled to the possession of the 
real property, must be made a party to all suits affecting ii Haa-wood v. 
Maj-ye et oU.j Oct. term, 1857. 

The complaint after setting out the note and mortgage sued on, alleges that 
Smith, one of the mortgagors, is dead ; that one William Smith, a resident of 
Virginia, is his heir. It not appearing by the complaint whether there was 
any administrator of the estate of Smith, and no presentation of the claim for 
allowance being alleged : ffeld, that the action could not be maintained, and 
that the fact of there being no administrator will not excuse want of presen- 
tation. Ih, 



M* 



CHAPTER IX. 

CONVEYANCE OF REAL ESTATE BY EXECUTORS AND ADMINIS- 
TRATORS IN CERTAIN CASES. 

§ 205. When any person who is bound by contract in wri- 
ting, to convey any real estate, shall die before making the w^n^dkSt^to 
conveyance, the probate court may make a decree, authori- ^57^ "*^ ** 
zing and directing the executor or administrator, to convey 
such real estate to the person entitled thereto, in all cases 
where such deceased person, if living, might be compelled to 
make such conveyance. 

[Forms No. 132, 135, 136 and 138, Appendix.] 

§ 206. On the presentation of a petition of any person Petition for 
claiming to be entitled to such conveyance, from any execu- «>'*^«y*°<»- 
tor or administrator, setting forth the facts upon which 
such claim is predicated, the probate judge shall appoint a 
time and place for hearing such petition, which shall be at a 
a regular term of the court ; and shall order notice of the 
pendency thereof, and of the time and place of hearing, to 



86 CONYETANOEB IK CERTAIN OASES. 

Notice of hear ^® published at IcEst fouF successive weeks before such 
^ hearing, in such newspaper in this State, as he may desig- 

nate. 

[Forms No. 131, 137, 133 and 134, Appendix.] 

§ 207. At the time and place appointed for such hearing, 

The hearing or at such othcr time, as the same may be adjourned to, upon 

may *fi£ Jbjec- proof by affidavit, of the due publication of the notice, the 

^^' court shall proceed to a hearing, and all persons interested 

in the estate, may appear and defend such petition, by filing 

their objections in writing, and the court may examine on 

oath the petitioner, and all who may be produced before 

' him for that purpose. 

[Fonn No. 134, Appendix.] 

§ 208. After a full hearing upon such petition and objec- 
tions, and examination of the facts and circumstances of the 
ma b^dlcwJd^* claim, if the probate judge is satisfied that the petitioner is 
entitled to a conveyance of the real estate described in his 
petition, he shall make a decree authorizing and directing 
the executor or administrator to execute a conveyance 
thereof to the petitioner. 

[Forms No. 132, 135, 136 and 138, Appendix.] 

§ 209. Any person interested, may appeal from such de- 
, ^ cree, to the district court for the same county, as in other 

Appeal from ' " 

decree. Copy to cascs I but if uo appeal be taken from such decree within 

he recorded :ita ' ini-i 

effects aa eyi- the time limited therefor by law, or if such decree be amrm- 

dence* 

ed on appeal, it shall be the duty of the executor or adminis- 
trator to execute the conveyance according to the directions 
contained in the decree, and a certified copy thereof shall be 
recorded with the deed, in the office of the recorder, in the 
county where the lands lie, and shall be evidence of the cor- 
rectness of the proceedings, and of the authority of the ex- 
ecutor or administrator to make such conveyance, (a.) 

§ 210. If, upon a hearing in the probate court, as herein 

before provided, the probate judge shall doubt the right of 

When tition- ^^^ Petitioner to have a specific performance of the contract, 

er may proceed he shall dismiss thc petition, without prejudice to the riffhts 

in district court. , , , i ^ •f o 

of the petitioner, who may at any time within six months 
thereafter, proceed in the district court to enforce a specific 
performance. 

§ 211. Every conveyance made in pursuance of a decree 

Effect of con- 
veyance, (a.) See arde, p. 19-21. 






CONVEYANCES IN CBNTAIN CASES. 87 

of the probate court, as provided in this chapter, shall be 
effectual to pass the estate contracted for, as fully as if the 
contracting party himself was still living, and then execu- 
ted the conveyance. 

§ 212, A copy of the decree for a conveyance made by the 

*__, •ftj J 3-i«-i«r» Decree for con- 

probate court, and duly certified and recorded m the oflBce veyance. when 

«, 1 n ^ 1 ii-ii*-i<ii* recorded, to gfive 

of the recorder of the county where the lands lie, shall give rfgiit of possei- 



Bioa. 



the person entitled to the conveyance, a right to the posses- 
sion of the lands contracted for, and to hold the same ac- 
cording to the terms of the intended conveyance, in like 
manner as if they had been conveyed in pursuance of the 
decree. 

§213. The recording of any decree, as provided above, Decree B*vrb« 
shall not prevent the court making such decree, from enfor- J? pJJ^gBf **^" 
cing the same by other process. 

§ 214. If the person to whom the conveyance was to be 
made, shall die before the commencement of the proceed- Proceedings in 
ings, according to the provisions of this chapter, or before ^rt/entiued to 
the completion of the conveyance, any person who could ^^'^^^y*^®®- 
have been entitled to the estate under him as heir, devisee, 
or otherwise, in case the conveyance had been made accord- 
ing to the terms of the contract, or the executor or adminis- 
trator of such deceased person, for the benefit of the person 
so entitled, may commence such proceedings, or may prose- 
cute the same, if already commenced, and the conveyance 
shall be so made as to vest the estate in the same person 
who would have been entitled to it, or in the executor or ad- 
ministrator for their benefit. 



CHAPTER X. 

I 

ACCOUNTS TO BE RENDERED BY EXECUTORS AND ADMINISTRA- 
TORS, AND PAYMENT OF DEBTS, (a.) 

§ 215. No executor or administrator, shall be chargeable 

npon any special premise to answer damages, or to pay the 

not **^^ Jonaiiy dobts, of thc tcstator or intestate, out of his own estate, nn- 

on wntte?'\'^o- less the agreement for that purpose, or some memorandum 

*"'**' or note thereof, is in writing, and signed by such executor 

or administrator, or by some other person, by him thereunto 

specially authorized. 

§ 216. Every executor and administrator, shall be charge- 
able in his accounts, with the whole of the estate of the de- 

Exectttcr, etc., -, i » ^ i . . i i <• 

chargfeabi© for in- ceased, which may come to his possession, at the value of 

come, etc.. of es- ' , " . ^ . , . 

t*te. the appraisement contained in the inventory, except as pro- 

vided in the following sections, and with all the interest, 
profit, and income of the estate* 

[Form No. 167, Appendix] 

§ 217. He shall not make profit by the increase, nor suf- 
when ch*rge- f^r loss by the decrease or destruction, without his fault, of 
acJouitabir*fOT any part of the estate. He shall account for the excess, 
excess. whcu hc shall sell any part of the estate for more than the 

appraisement, and if any shall be sold for less than the ap- 
praisement, he shall not be responsible for the loss, if the 
sale has been justly made. 

[Form No. 167, Appendix.] 

§ 218. No executor or administrator shall be accountable 
debts.^"^^"^^^^^ for any debts due to the deceased, if it shall appear that 
they remain uncollected without his fault. 

[Form No. 167, Appendix.] 

Necesaar «- § ^^^' ^^ ^^^'^ ^^ allowcd all jgcccssary expenses, in the 
f^?aiio*wed ^^^^1 management, and settlement of the estate, and for his 
Tidl^fOTOTm'*'^" services, such fees as the law provides ; but when the de- 

s .tion* - - 

(o.) See cases noted at the end of the chapter. 



ACCOUNTS, ETC., AND PAYMENT OP DEBTS. 89 

ceased shall, by his will, make some other provision for the 
compensation of his executor, that shall be deemed a full 
compensation for his services, unless he shall by a written 
instrument, filed in the probate court, renounce all claim for 
compensation provided by the will. 

[Form No. 140, Appendix.] 

§220. No administrator or executor shall purchase any 
claim against the estate he represents ; and if he shall have 
paid any claim for less than its nominal value, he shall 
only be entitled to charge in his account, so much as he shall 
have actually paid. 

[Form No. 164, Appendix.] 

Where an executor, under a power of sale, sold the testator's real estate at 
public action, and a third person, at the solicitation <9f the executor and for 
his benefit, purchased the premises : Held^ that the sale, upon an accounting, 
might be treated as invalid, so far as to hold the executor responsible for the 
true value of the property at the time of the sale. Ames v. Downing^ I 
Bradford's R., 321, 

A person who, in view of taking the administration of an estate, purchases 
claims against the estate at a discount, is only entitled to credit for the amount 
actually paid. ChevaUier Admr. v. WUsonand vnfe^ 1 Texas R., 161. 

§ 221. When no compensation shall have been provided 
by the will, or the executor shall renounce all claim thereto, ^^ naation 
he shall be allowed commissions upon the amount of the ®i ®'P^'i***? *'^'* 

^ adxuimatrators. 

whole estate accounted for by him, as follows : — For the 
first thousand dollars, at the rate of seven per cent ; for all 
above that sum, and not exceeding ten thousand dollars, at 
the rate of five per cent ; for all above that sum, at the rate 
of four per cent ; and the same commissions shall be allowed 
to administrators. In all cases, such further allowance may 
be made, as the probate judge may deem just and reason- 
able, for any extraordinary services, not required by an ex- 
ecutor or administrator in the common course of his duty ; 
provided^ the total amount of such allowances shall not ex- 
ceed the amount of commissions allowed by this section. 

[Form No. 167, Appendix.] 

This rule only applies where the administration is complete, and the estate 
finally settled. Where the administrator resigns or is removed, leaving the 
administration incomplete, there is ho fixed rule of compensation. The pro- 
bate court should apportion it in reference to the compensation fixed by law 
for the whole, according to sound judgment. Ord v. LitUe^ 3 Cal. R., 287. 

§ 222. At the third term of the court after his appoint- 
ment, and thereafter, at any time when required by the court, 

12 



90 ACCOUKTB, ETC., AND PAYMENT OF DEBTS. 

either upon its own motion, or upon the application of any 
Executor, etc , poFSon inteFSsted in the estate, the executor or admini stra- 
it ^h°^?h7rd^7ra tor, shall render, for the information of the court, an exhibit 
^erhisappoint^jj^^j, oath, showiug thc amount of money received and ex- 
pended by him, the amount of all claims presented against 
the estate, and the names of the claimants, and all other 
matters, necessary to show the condition of its affairs. 

[Forms No. 141, 142, Appendix.] 

§ 223. If the executor or administrator, fail to render an 
M -UM exhibit at the third term of the court, it shall be the duty of 

In cane of mil •' 

cISntStot?oii*tott^® jiidge, to cause a citation to be issued, requiring him to 
issue. appear and render it. 

[Forms No. 143, Appendix.] 

§ 224. Any person interested in the estate, may, at any 
Petition for ftc- time bcfore the final settlement of accounts, present his 
iX?Mt?d. '**'*^ petition to the probate judge, praying that the executor or 
administrator, be required to appear and render such ex- 
hibit, setting forth the facts, showing that it is necessary 
and proper that such an exhibit should be made. 

[Form No. 142, Appendix.] 

§ 225. If the judge be satisfied, either from the oath of 
atfttion when thc appHcaut, or from any other testimony that may be of- 
**""'^' fered, that the facts alleged are true, and shall consider the 

showing of the applicant suflScient, he shall direct a citation 
to be issued to the executor or administrator, requiring him 
to appear at some day to be named in the citation, which 
shall be during a term of the court, and render an exhibit 
as prayed for. 

[Form No. 143, Appendix.] 

§ 226. When an exhibit is rendered by an executor or 

administrator, any person interested may appear, and by ob- 

contestingac^g^l^ions in Writing, contest any account or statement therein 

count. J ■ ° • .1 1 . . 

Letter*. When contained. Thc court may examine the executor or admmis- 
trator, and if he has been guilty of negligence, or has wasted 
or embezzled, or mismanaged the estate, his letters shall be 
revoked. 

[Forms No. 141 and 145, Appendix.] 

§ 227. If any executor or administrator, neglect or refuse 
to appear and render an exhibit, after having been duly 
jJ!?^Si.,\ow cited, an attachment may be duly issued against him, or his 
puniib«d. letters may be revoked in the discretion of the court. 

Form No. 144, Appendix.] 



ACCOUNTS, ETC., AND PAYMENT OF DEBTS. 91 

§ 228. Every executor or administrator, shall render a 
full account of his administration, upon the expiration of ruii account 
one year from the timie of his appointment. If he fail toexpiraSo/Jfone 
present his account, it shall be the duty of the judge to forced byattacS- 
compel the rendering of such account by attachment, and"***^*" 
any person interested -in the estate, may apply for, and ob- 
tain an attachment, but no attachment shall issue, unless a 
citation has been first issued and returned, requiring the . 
executor or administrator, to appear and show cause why an 
attachment should not issue. 

[Forms No. 146 to 149, Appendix.] 

§ 229. Whenever tho authority of an executor or adminis- 
trator, shall cease, or be revoked for any reason, he may beacJStfntaft^e^ 
cited to account before the probate cou^t, at the instance of ruthirity.**^ ^" 
the person succeeding to the administration of the same 
estate, in like manner as he might have been cited by any 
person interested in the estate, during the time he was 
executor or administrator. 

§ 230. If the executor or administrator resides out of the 
county, or absconds or conceals himself, so that the citation Letters revoked 
cannot be personally served, and shall neglect to render an rendered, etc." 
account within thirty days after the time above prescribed, 
or if he shall neglect to render an account within thirty 
days after being committed where the attachment has been 
executed, his letters shall be revoked. 

[Form No. 160, Appendix.] 

Executor, etc., 

§ 231. In rendering his account, the executor or adminis- e?snnrmly"be 

j.-ii-ij 1.^111 1 examined on oath 

trator shall produce vouchers for all charges and expenses 
which he shall have paid, which vouchers shall be filed, and 
remain in the court ; and he may be examined on oath, 
touching such payments, and also touching any property and 
eflFects, of the deceased, and the disposition thereof. 

[Forms No. 156 and 167, Appendix.] 

§ 232. On the settlement of his account, he may be .alio wed when d^a^ensed 
any item of expenditure, not exceeding twenty dollars, for"^'"" 
which no voucher is produced, if such item be supported by 
his own oath positive, to the fact of payment, specifying 
where, and to whom, the payment was made, and if such 
oath be uncontradicted ; but such allowance in the whole, 
shall not exceed five hundred dollars for payment in behalf 
of any one estate^ 



92 ACCOUNTS, ETC., AND PAYMENT OF DEBTS. 

§ 233. When tho account is gendered for settlement, no* 
Notice of flettie-tice thereof shall be given by the clerk, by causing notices 
o ac un . ^^ be posted up, in three public places in the county. The 
notice shall set forth the name of the estate and of the ex- 
ecutor or administrator, and the day appointed for the set- 
tlement of the account, which shall be on some day of a 
term of a court. 

[Forms No. 151 and 152, Appendix.] 

§ 234. On the day appointed, or any subsequent day to 

Exceptions to i_ • i a-i i_ • it* t -i i-i j 

iu account, which the hearing may be adjourned by the court, any per- 
son interested in the estate, may appear and file his excep- 
tions in writing to the account, and contest the same. 

[Forms No. 154 and 164, Appendix.] 

§ 235. If there be any minor interested in the estate, who 

Minors to be has HO legally appointed guardian, the court shall appoint 

represented. gome disinterested person to represent him, who, on behalf 

of the minor, may contest the account as any other person 

having an interest might contest it, and who «hall be allowed 

by the court for his services a reasonable compensation. 

[Form No. 153 and 159, Appendix.] 

§ 236. The hearing and allegations of the respective 
parties may be adjourned from time to time as shall be ne- 

f Adjournments. n .-i , • , t^ x 

Auditors to be ccssary, auo the court may appoint one or more auditors to 

appoin . examine the accounts and make report thereon, subject to 

confirmation, and may allow a reasonable compensation to 

such auditors, to be paid out of the estate of the deceased. 

[Forms No. 155, Appendix.] 

§ 237. The settlement of the account and the allowance 

thereof by the court, or upon appeal, shall be conclusive 

account. Against against all persons in any way interested in the estate, 

whom conclusive , , n 

saving, however, to all persons laboring under any legal 
disability, their rights to proceed against the executor or 
administrator, either individually or upon his bond, within 
two years after their respective disabilities shall cease, and 
in any action brought by any such person, the allowance and 
settlement of the account shall be deemed presumptive evi- 
dence of its correctness. 

[Forms No. 156, 160, 165, 166 and 167, Appendix.] 

prived, etc. § 238. Thc accouut shall not be allowed by the court until 

it be first proved that notice has been given as required by 



ACCOUNTS, ETC., AND PAYMENT OP DEBTS. 93 

this chapter, and the decree shall show that such proof was 
made to the satisfaction of the court, and shall be conclu- 
sive evidence of the fact. 

[Forms No. 152, 156, 160, 165, to 167, Appendix.] 

§ 239. The ddbts of the estate shall be paid in the follow- 
ing order : 1st, Funeral expenses; 2d, The expenses of the ment of debts. 
last sickness ; 3d, Debts having; preference by the laws of 
the United States ; 4th, judgments rendered against the de- 
ceased in his lifetime, and mortgages in the order of their 
date ; 5th, All other demands against the estate. 

[Forms No. 156 and 167, Appendix.] • 

§ 240. The preference given in the preceding section to a 
mortgage, shall only extend to the proceeds of the property Mortgage. 
mortgaged. If the proceeds of such|property be insufficient 
to pay the mortgage, the part remaining unsatisfied shall be 
classed with other demands against the estate. • 

[Fonn No. 167, Appendix.] 



If estate iosnf- 
ficient. 



§ 241. If the estate be insufficient to pay all the debts of 
any one class, each creditor shall be paid a dividend in pro- 
portion to his claim ; and no creditor of any one class shall 
receive any payment until all those of the preceding class 
shall be fully paid. 

[Forms No. 156, 161, 163 and 165, Appendix.] 

§ 242. It shall be the duty of the executor or administra- 
tor, as soon as he has sufficient funds in his hands, to pay the p^^ ^^^^ ^ 
funeral expenses and the expenses of the last sickness, and^®^™*^^^^'*^®'^®®" 
the allowance made to the 'family of the deceased ; and he 
may retain in his hands the necessary expenses of adminis- 
tration, but he shall not be obliged to pay any other debt, 
or any legacy until, as prescribed in this act, the payment . 
has been ordered by the court. 

[Forms No. 156, 165 and 167, Appendix. 

§ 243. Upon the settlement of the accounts of the execu- 
tor or administrator, at the end of the year, as required in 
this chapter, the court shall make an order for the payment 
of the debts as the circumstances of the estate shall require, debt*.. 
If there be no sufficient funds in the hands of the executor 
or administrator, the court shall specify in the decree the 
sum to be paid to each creditor. 

[Forms No. 156, 160, 161, 163 and 166, Appendix.] 



94 ACCOUNTS, ETC., AND PAYMENT OF DEBTS. 

§ 244. If there is any claim not doe, or any contingent or 
Providion for disputcd claim against the estate, the amount thereof, or 

disputed and con- * at ii-ii -i-i* i» 

tingentciaimB. guch part 01 thc samc as the holder wonld be entitled to if 
the claim were due, or established, or absolute, shall be paid 
into the court, where it shall remain to be- paid over to the 
party when he shall become entitled thereto, or if he fail to 
establish his claim, to be paid over or distributed as the cir- 
cumstances of the estate require: Provided, that if any 
creditor whose claim has been allowed, but is not yet due, 
shall appear and assent to a deduction therefrom of the le- 
gal inter.est for the time the claim has yet to run, he shall be 
entitled to be paid accordingly. 

i^*iS?en^*of?ebte § ^'^^' Whcncver a decree shall be made by the probate 

au^^uiwe^there- ^^^^^ ^^^ ^^^ paymcut of crcditors, the executor or adminis- 

*»'• trator shall be personally liable to each creditor for his 

^ claim, or the dividend thereon, and execution may be issued 

on such decree, as upon a judgment in the district court, in 

favor of each creditor, and the same proceeding may be had 

Ai8oii»W6on^°^®^ such execution as if it had been issued from the dis- 

bond. ^j.j^|. QQurit^ The executor or administrator shall also be 

liable on his bond to each creditor. 

§ 246. When the accounts of the administrator or execu- 
ciuded in order tor havc bccn scttlcd, and an order made for the payment of 
debts. debts and distribution of the estate, no creditor whose claim 

was not included in the order for payment shall have any 
right to call upon the creditors who have been paid, or 
upon the heirs, devisees, or legatees to contribute to the pay- 
ment of his claim ; but if the executor or administrator shall 
have failed to give the notice to the creditors as prescribed 
by this act, such creditor may recover on the bond of the 
executor or administrator the amount of his claim, or such 
part thereof as he would have been entitled to had it been 
allowed : Provided, that this section shall not apply to any 
creditor whose claim was not due ten months before the day 
of settlement, or whose claim was contingent and did not 
become absolute ten months before such day. 

^^ , § 247. If the whole of the debts shall have been paid by 

Order for pay- " r j 

ment of legacies, the first distribution, the court shall proceed to direct the 
payment of legacies and the distribution of the estate among 
the heirs, legatees, or other persons entitled. But if there 



ACCOUNTS, ETC., AND PAYMENT OF DEBTS. 95 

be debts remaining unpaid, the court shall give such exten- 
sion of the time as may be reasonable for a final settlement 
of the estate. 

[Forms No. 166, 173 and 174, Appendix.] 

§ 248. At the time designated, or sooner, if within that time 
all the property of the estate shall have been sold, or there Executor's final 

**•', -li. 1 account, 

shall be suflficient funds in his hands for the payment of all 
the debts due by the estate, the executor or administrator 
shall render a final account and pray a settlement of his ad- 
ministration. 

[Form No. 167, Appendix.] 

§ 249. If he neglect to render his account, the same pro- 
ceedings may be had as prescribed in this chapter, in regard rendw^flSSi^a^ 
to the first account to be rendered by him; and all the pro-®®**^** 
visions of this chapter relative to the last mentioned ac- 
count, and the notice and settlement thereof, shall apply to 
his account presented for final settlement. 

Cases hearing vpon the gcne^xil subject of ike preceding division of the 

Statute. 

If an executor or administrator, receive from the debtor, an aUowanee over 
and above the amount of the demand, for extra trouble in adjusting and setr 
tling it, he is not bound to account for it ; and if he receive extra interest, he 
cannot be charged with it in his administration account. Gordon v. Westj 8 
New Hamp. R., 444. 

But see Sec. 217, ante^ 

The time and expenses of an executor in procuriAg an iigunction upon a 
fraudulent judgment against the estate, may be allowed. Boaais v. Masons 11 
VeruL, 122. 

The fact that an executor or administrator has charged a gross sum in his 
account for personal services, furnishes no legal reason for rejecting the charge 
in toto. Jb. 

An administrator who has purchased a judgment against a plaintiff since 
the rendition of a judgment against him, for a debt owing by intestate, cannot 
set off such judgment. HiUs v. TaMman, 21 Wend!, 674. 

On an application for leave to issue execution apon a judgment against an 
executor for costs, in defence of a proceeding instituted by an executor, the 
latter sought to off-aet, a judgment against the applicant, recovered by C. B. 
and assigned to the executor : ffeldy that as the judgment for costs, was in 
terms against the executor in his representative capacity, it must abide the 
course of distribution of the estate. The judgment purchased by the execu* 
tor, belongs to him individuaUy. To authorise a set-off, the debts must be 
mutual, and must be due to and from the same persons in the same capacity ; 
and it is against sound policy to permit executors to buy up claims against 
creditors of the deceased, for the purpose of obtaining a setoff in equity. 
Dudley V. GriswMy 2 Bradford's R:, 24. 

Executors may be allowed for their expenses in the management of the 
estate ; but the charges must be reasonable. If necessary, an agent may be 



96 ACCOUNTS, ETC., AND PAYMENT OF DEBTO. 

employed at the expense of the estate. Glover v. EdRty^ 2 Bradford's 

R, 291. 

An administrator will be allowed for expenses of communicating intelli- 
gence of the death of the deceased to his family ; for all necessary charges 
attending his interment, and for his own traveling expenses. Easier t. 
Hosier, 1 Bradford's B., 248. 

If an agent has been necessarily employed in the collection of the rents of 
leasehold estate by the executors, his commissions may be allowed ; but if the 
executor has himself performed the service, he can only receive his regular 
statutory commissions. Fished' v. Fisher, 1 Bradford's R., 336. 

Reasonable repairs and improvements, enhancing the value of the property, 
may be made by an executor, upon leasehold estate, occupied by the legatees 
or parties in interest, etc. Ames v. Dcvming, 1 Bradford's R., 321. 
• On an accounting, the Surrogate has jurisdiction to try every question ne- 
cessary to the settlement of the accounts. The legatees can adduce evidence 
to charge the executor with more assets than he acknowledges to have re- 
ceived ; and it is competent for him, on the other hand, to show in defence, 
that the assets were his own property, and not part of the testator's estate, at 
the time of the death. Merchant v. M&rchani, 2. Bradford's R., 432. 

Where partnership property has come into the hands of an administrator, 
he is no further accountable than for the share of the deceased in the partner- 
ship assets, after payment of all the liabilities, and a full settlement of all 
the partnership accounts. Montgomery v. Dunning j 2 Bradford's R.; 220. 

The administrator of a surviving partner, stands in the same position as the 
surviving partner in his life time, and although he has the legal title to the 
partnership effects, yet they are assets of the firm, and not of his intestate, 
and should neither be inventoried nor accounted for, as property of his intes- 
tate. Thomson v. Thomson, 1 Bradford's R., 24. 

An executor who is also named as a trustee in a will, though not entitled to 
commissions in each capacity, shall have his full commissions both for receiv- 
ing and paying out, on the final settlement of his account as executor. Mann 
V. Lawrence, 3 Bradford's R., 424. 

Interest will be charged against the executor if he mix the ftinds of the 
estate with his own, and make use of them. Olgivie v. Olgivie, 1 Bradford's 
R., 356. 

An administrator having the funds of the estate in gash for six years, not 
showing that the money was kept in bank, or otherwise, ready, to be paid 
over, and not explaining the delay in closing the estate : Held, that he was 
chargeable with interest on the presumption of use of the funds. Hader v. 
Hosier, 1 Bradford R., 248. 

An administrator will be chargeable with interest accruing on claims against 
the estate, which have been approved, if he have funds, and neglect to take 
proper steps to have them applied to the discharge of the claims. Fifdey v. 
Coroihers, 9 Texas R., 517. 

Although a claim be an open account, it bears interest from the date of its 
approval ; the allowance and approval, being a judgment, Ih. 

A settlement in the probate court is a final settlement, but a complainant 
who was no party to it, may treat it as a nullity, and proceed to invoke the 
equitable powers of the district court, and compel the administrators to a full 
account, disregarding the proceeding or settlement in the probate court. 
Clarke v. Perry 5 Cal. R., 68. 

Administrators and executors are individually responsible for costs recov- 
ered against them in every case ; but they shall be allowed them, in their ad- 



PABTITIOK AND PIBTEIBUTION* 97 

ministration accounts, except when it appears tliat the action has been prose- 
cuted or resisted without just cause. Hicox t. Chraham, 6 Cal. R., 167. 

An administrator is not responsible for a debt lost by mistake, where he 
acted in good faith, and under advice of oounseL King y. Morr%9on, 1 
Penn., 18a 

If an administrator sends wine belonging to the estate, abroad on specula- 
tion, and loses on it, he is responsible for the loss. CaMaghan v. flafl, 1 Serg. 
& Rawles' R., 241. 

He is also liable for the interest and costs of a debt which he refused to paj, 
when assets were in his hands. lb. 



mm^ 



CHAPTER XI. 



PARTITION AND DISTRIBUTION OF ESTATES. 

§ 250. At any time subsequent to the third term of the 
probate court, after the issuing of letters testamentary or of or deTiaee^rhia 
administration, any heir, devisee, or legatee, may present^ 
his petition to the court, that the legacy or share of the 
estate to which he is entitled may be given to him, upon his 
giving "bonds with security for the payment of his propor- 
tion of the debts of the estate. 

[Form No. 168, Appendix.] 

§ 251- Notice of the application shall be given to the ex- 
ecutor or administrator, and to all persons interested in the cation, 
estate, in the same manner that notice is required to be 
given of the settlement of the account of an executor or ad- 
ministrator. 

[Forms No. 169 and 170, Appendix.] 

§ 252. The executor or administrator, or any person inte- Executor, etc., 
rested in the estate, may appear and resist the application, Stfo^*"* *^^" 
or any other heir, devisee, or legatee, may make a similar 
application for himself. 

§ 253. If, at the bearing, it appear that the estate is but Decree m 

little indebted, and that the share of the party or parties ^^*^ 

applying may be allowed to him or them, without injury to 

the creditors of the estate, the court shall make a decree in 

13 



Costs. 



98 PABTinON AND DISTRIBUTION. 

conformity with the prayer of the applicant or applicants : 
Provided, each one of them shall first execute and deliver to 
the executor or administrator a bond in such sum as shall be 
designated by the probate judge, and with sureties to be ap- 
proved by him, payable to the executor or administrator, 
conditioned for the payment by the heir, legatee, or devisee, 
whenever required, of his proportion of the debts due from 
the estate. 

[Form No. 171, Appendix.] 

§ 254. Such decree may order the executor or administra- 
de?^SSe"S^Mt^^^ *^ deliver to the heir, legatee, or devisee, the whole por- 
etc'**d3iv/r^**'' *^^^ ^^ *^® estate to which he may be entitled, or only a part 
thereof. 

whsre partition § 255. If iu tho oxecution of such decree, any partition be 
necessary. ncccssary betwccn two or more of the parties interested, it 
shall be made in the manner hereinafter prescribed. 

§ 256. The costs of the proceedings authorized by the pre- 
ceding section shall be paid by the applicant, or, if there be 
more than one, shall be apportioned equally amongst them. 

§ 257. Whenever any bond has been executed and deliv- 
order for pay- ercd uudcr tho provisions of the preceding sections, and the 
executor or administrator shall ascertain that it is necessary 
for the settlement of the estate to require the payment of 
any part of the money thereby secured, he shall petition the 
court for an order requiring the payment, and shall have a 
citation issued and served on the party bound, requiring 
him to appear and show cause why the order shall not be 
made. At the hearing, the court, if satisfied of the neces- 
sity of such payment, shall make an order accordingly, 
designating the amount, and giving a time within which it 
Action on bond, giiall be paid. If the money be not paid within the time 
allowed, an action may be maintained by the executor or 
administrator on the bond. 

§ 258. Upon the final settlement of the accounts of the 
^^Dfattbution of executor or administrator, or at any subsequent time, upon 
the application of the executor or administrator, or of any 
heir, legatee, or devisee, the court shall proceed to distrib- 
ute the residue of the estate, if any, among the persons who 
are by law entitled. 

[Forms No. 172, to 176, Appendix.] 



PABTITIOK AND DISTRIBUTION. 99 

§ 259. In the decree the court shall name the persons and 
the proportion or parts to which each shall be entitled, and Form of decree. 
such persons shall have the right to demand and recover 
their respective shares from the executor or administrator, 
or any person having the same in possession, 

§ 260. The decree may be made on the application of the 
executor or administrator, or of any person interested m the cation deeree 
estate, and shall only be made after notice has been given 
in the manner required in regard to an application for the 
sale of land by an executor or administrator. The court 
may order such further notice to be given as it may deem 
proper. 

[Forms No. 172 and 173, Appendix.] 

§ 261. When the estate, real or personal, assigned to two 

,. ,. ixi^nv- J Parittlonofes- 

or more heirs, devisees, or legatees, shall be m common and tate in common, 
undivided, and the respective shares shall not be separated 
and distinguished, partition and distribution may be made 
by three disinterested persons, to be appointed commis- 
sioners for that purpose by the probate judge, who shall be 
duly sworn to the faithful discharge of their duties, and the 
court shall issue a warrant to them for that purpose. 

[Forms No. 181 and 182, Appendix.] 



Real estate in 



§ 262. If the real estate shall be in diflferent counties, the 
probate court may, if it shall judge proper, appoint diflferent diflfS^t'cOTlSaM 
commissioners for each county ; and in such cases the estate 
in each county shall be divided separately, as if there was 
no other estate to be divided ; but the commissioner first 
appointed shall, unless otherwise directed by the probate 
court, make division of such real estate wherever situated 
within this state. 

[Form No. 182, Appendix.] 

§ 263. Such partition and distribution may be ordered on ^ 

■*■ ^ WJio may apply 

the petition of any of the persons interested; but before *^'p*'****«>'»' ®*«- 
any partition shall be ordered, as directed in this chapter, 
notice shall be given to all persons interested who shall re- 
side in this State, or their guardians, and to agents, attor- 
neys or guardians, if there be any in this State, of such as 
reside out of the State either personally or by public notice 
as the probate court shall direct. 

[Forms No. 178 and 179, Appendjbc] 



100 PABTinON AND DISTEIBUTION. 

Partition may be § 264. Partition of the real estate may be made as provl- 
■omeofthehefrsded in this chapter although some of the original heirs or 
^ik their^ter- dcvisecs may have conveyed their shares to other persons, 
^ and such shares shall be assigned to the person holding the 

same, in the same manner as they otherwise should have 

been to such heirs or devisees. 

[Form No. 183, Appendix.] 

§ 265. The several shares in the real and personal estate 

oat bjLeteaJISd shall bc sct out to cach individual in proportion to his right, 

"° ' by such metes and bounds, or description, that the same can 

be easily distinguished, unless two or more of the parties 

interested shall consent to have their shares set out, so as to 

be held by them in common and undivided. 

[Fonns No. 183 and 184, Appendix.] 



§ 266. When any such real estate cannot be divided with- 
mt^^l^^ out prejudice or inconvenience to the owners, the probate 
wnSiiSS^*'**^ court may assign the whole to one or more of the parties 
entitled to shares therein, who will accept it, always prefer- 
ring the males to the females, and among children, prefer- 
ring the elder to the younger : Provided, the party so ac- 
cepting the whole shall pay to the other parties interested, 
their just proportion of the true value thereof, or shall 
secure the same to their satisfaction ; and the true value of 
the estate shall be ascertained by commissioners appointed 
by the probate court, and sworn for that purpose. 

§ 26T. When any tract of land or tenement shall be of 
Payments foir greater value than either party's share in the estate to be 

equality of par- •i**-i-i t ^ f 

ution. divided, and cannot be divided without injury to the same, 

it may be set off by the commissioners appointed to make 
partition, to either of the parties who will accept it, giving 
preference as prescribed in the preceding sections : Provi- 
ded, the party so accepting shall pay or secure to one or 
more of the others such sums as the commissioners shall 
award, to make the partition equal, and the commissioners 
shall make their award accordingly ; but such partition 
shall not be established by the court until the sums so 
awarded shall be paid to the parties entitled to the same, 
or secured to their satisfaction. 

[Form No. 183, Appendix.] 

Estate may be § 268. Whcu it caunot othcrwise be fairly divided, the 

sold and proceeds . - •/ 7 

divided. whole or any part of the estate, real or personal, may be 



PABimON AKD DISTRIBUTION. 101 

recommended by the commissioners to be sold ; and if the 
report be confirmed, the court may order a sale by the 
executor or administrator, or by an agent appointed for the 
purpose, and distribute the proceeds. 

[Form No. 183, Appendix.] 

§ 269. When partition of real estate among heirs or devi-mon, iww ^- 
sees shall be required, and such real estate shall be in com- 
mon, and undivided with the real estate of any other person, 
the commissioners shall first divide and sever the estate of 
the deceased from the estate in which it lies in common, and 
such division so made and established by the probate court 
shall be binding upon all the persons interested. 

[Form No. 183^ Appendix.] 



Guardiaiu for 



§ 270. Before any partition shall be made, or any estate 
divided as provided in this chapter, guardians shall be ap- mmon to bf ap- 

..li* 11* 3 • • i_ 1^ t • Mt pointed before 

pointed for all minors and insane persons interested m themakmKpartiuon 
estate to be divided ; and some discreet person shall be ap- 
pointed to act as agent for such parties as reside out of the 
State ; and notice of the appointment of such agent shall be 
given to the commissioners in their warrant ; and notice 
shall be given to all persons interested in the partition, 
their guardians or agents, by the commissioners, of the time 
when they shall proceed to make partition. 

[Fonns No. 180, 182 and 183, Appendix. 

§ 271. The commissioners shall make report of their pro- 

^ • Probate court 

ceedings to the probate court in writing, and the court may may set aside 
for sufficient reasons set aside such report, and commit the 
same to the same commissioners or appoint others ; and the 
report, when finally accepted and established, shall be 
recorded in the records of the probate court, and a copy 
thereof, attested by the clerk under the seal of the court, 
shall be recorded in the office of the recorder of the county 
where the lands lie. 

[Form No. 183, Appendix.] 

§ 272. When the probate court shall make a decree 
assijrninfi: the residue of any estate to one or more persons sionen to make 

° ® . 1 n 1 partition not ne- 

entitled to the same, it shall not be necessary to appoint cessary. 
commissioners to make partition or distribution of such 
estate, unless the parties to whom the assignment shall be 
decreed, or some of them, shall request that such partition 
shall be made. 



n 



102 PABTinON AND DISTBIBimOH. 

§ 278. All qaestions as to advancements made, or alleged 
Qaestioniaatoto haYO been mado, by the deceased to any heirs, may be 
bft'^eeided by heard and determined by the probate coart, and shall be 
^^ ^ specified in the decree assigning the estate, and in the war- 
rant to the commissioners, and the final decree of the pro- 
bate court, or in case of appeal, of the district or supreme 
court, shall be binding on all parties interested in the estate. 

I [Form No. 183, Appendix.] 

§ 274. When any estate shall be assigned by decree of 
point a^t ^to the court, or distributed by commissioners, as provided in 
for IbMutees.^" this chaptcr, to any person residing out of this State, and 
having no agent therein, and it shall be necessary that some 
persoft should be authorized to take possession and charge 
of the same for the benefit of such absent person, the court 
may appoint an agent for that purpose, and authorize him to 
take charge of such estate, as well as to act for such absent 
person in the partition and distribution. 

[Forms No. 175, Appendix.] 

Agmt to giye § ^75. Such agcut shall give a bond to the judge of pro- 
^'^' bate, to be approved by him, faithfully to manage and ac- 

count for such estate, before he shall be authorized to re- 
ceive the same ; and the court appointing such agent may 
allow a reasonable sum out of the profits of the estate for 
his services and expenses. 



Unclaimed ei- 
tate. 



§ 276. When the estate shall remain in the hands of the 
agent unclaimed for a year, it shall be sold under the order 
of the court, and the proceeds, deducting the expenses of the 
sale, to be allowed by the court, shall be paid into the State 
treasury. When the payment is made, the agent shall take 
from the treasury duplicate receipts, one of which he shall 
file in the office of the controller, and the other in the pro- 
bate court. 

liabiutjof § 277. The agent shall be liable on his bond for the care 

***"*' and preservation of the estate while in his hands, and for 

the payment of the proceeds of the sale, as required in the 

preceding section, and may be sued thereon by any person 

interested. 

§ 278. When any person shall appear and claim the money 

paid into the treasury, the probate court making the distri- 

eUimAnt. butiou, bciug first satisfied of his right, shall grant him a 



BEMOYAL OF EXECUTORS, ETC. 108 

certificate under its seal ; and upon the presentation of the 
certificate to the controller, he shall draw his warrant on 
the treasurer for the amount. 

§ 279. When the estate has been fully administered, and 

® '' ' Decree dig- 

it is shown by the executor or administrator, by the produc- charging e«cu. 

tion of satisfactory vouchers, that he has paid all sums of 

money due from him, and delivered up under the order of 

the court all the property of the estate to the parties enti- . 

tied, the court shall make a decree discharging him from all 

liability to be incurred thereafter. 

[Form No. 186, Appendix.] 

§ 280. The final settlement of an estate shall not prevent 

1 . /ti /I.. .i-i-i Letters of ad- 

a subsequent issuance of letters of administration, should miniatrationmav 
other property of the estate be subsequently discovered, or decree, 
should it become necessary or proper from any cause that 
letters should be again issued. 



CHAPTER XII. 

REMOVAL OF EXECUTORS AND ADMINISTRATORS IN CERTAIN 

CASES. 

§ 281. Whenever the probate judge has reason to believe, 
from his own knowledge, or from credible information, that Powersof we- 

o ' ' cutors, etc., may 

any executor or administrator has wasted, embezzled, or mis- ^e suspended. 
managed, or is about to waste or embezzle the property of 
the estate committed to his charge, or has committed, or is 
about to commit, a fraud upon the estate, or has become in- 
competent to act, it shall be his duty, by an order entered 
upon the minutes of the court, to suspend the powers of such 
executor or administrator until the matter can be investi- 
gated. 

The power of the probate judge to remove in his discretion, an administra- 
tor for any of the caueee named in the statute, will not be interfered with by 
the appellate court, unless it should be clearly shown that there has been ft 
gross abuse of discretion. Deck's EstaU y. Oherkef 6 Cal. R«, 666. 



104 BBMOYAL OF BXECXTTOBS, ETO. 

§ 282. DariBg the stispension of the powers of the execn- 
spedai admin- tor OF administrator, under the authority of the preceding 

iitrator may be tf « g» 

appointed. sectiou, the probate judge may, if the condition of the estate 
requires it, appoint a special administrator to take charge 
of the effects of the estate, who shall give bond, and account 
as other special administrators are required to do. 

'r 

See sections 88 to 94, inclasiye. 

§ 288. When such suspension has been made, notice there- 
Erecntor to of shall be givcu to the executor or administrator, and he 
hfrgu^SioSf shall be cited to appear and show cause why his letters 
andto bedtedt^ should uot bc rcvokcd. If he fail to appear in obedience to 
the citation, or if, appearing, the court be satisfied that 
there exists cause for his removal, his letters shall be re- 
voked, and letters of administration granted anew, as the 
case may require. 

Any party in- § 284. At thc hearing, any person interested in the estate 

terested may ap- 3 j*i j * 11 i* * ^x* 1 • ^^ t 

pear on hearing, may appear and file his allegations in writing, showing that 
the executor or administrator should be removed. Such al- 
legations shall be heard and determined by the court. 

See Sec. 18, anUf and cases cited. 

§ 285. If the executor or administrator has absconded, or 
conceals himself, or has removed from the county, notice 
abw^di^.' ***'' may be given him of the pendency of the proceedings, by 
publication, in such manner as the court may direct ; and 
the court may proceed upon such notice as if the citation 
had been personally served. 

§ 286. In the proceedings authorized by the five preceding 

sections of this chapter, for the removal of an executor or 

AtuchmentB administrator, the court may compel his attendance, by at- 

^omp a •"' ^g^^jjjmgjj^^ ^j^^ jj^^j compel him to answer questions, on oath, 

tcuching his administration, and upon his refusal so to do 
may commit him until he obey. 



CHAPTER Xni. 



MISCELLANEOUS PROVISIONS. 

§ 287. All orders and decrees made by the probate court, 
during its terms, shall be entered at length in the minute- eS^bJ wSJ' 
book of the court; and also all orders which the probate*^' 
judge is empowered to make out of term-time, and which 
are, by this act, specially required to be so entered. Upon 
the close of each term, the judge shall sign the minutes of 
the proceedings. 

§ 288. Whenever personal notice is required by this act 
to be given to any party to a proceeding in the probate how given, 
court, and no other mode of giving notice is prescribed, it 
shall be given by citation, issued from the court, signed by 
the clerk, and under the seal of the court, directed to the 
sheriff of the proper county, and requiring him to cite such 
person to appear before the court or judge, as the case may 
be, at a time and place to be named in the citation. In the 
body of the citation shall be briefly stated the nature or 
character of the proceeding. 

[Forms No. 12, 46, 148, App^dlx.] 

§ 289. The officer to whom the citation is directed shall ^^^^^"^ ^*^'' 
serve it by delivering a copy to the person named therein, 
or to each of them if there be more than one, and shall re- 
turn the original to the court according to its direction, 
endorsing thereon the time and manner of service. 

[Form No. 46, Appendix.] 

§ 290. When n^ other time is specially prescribed, cita- Time for ser- 
tion shall be served and returned at least five days before ^^*'^ "'"™* 
the return day thereof. 

§M t-T t 1 • •11 .I 111 /■ Clerk of probate 

291. Unless otherwise specially prescribed, the clerk of co^^ may ad. 
minister oaths, 

the probate court shall have power to administer all oaths i«8ue citations, 

necessary and proper to be taken, touching any matter 

pending in the probate court, or in any manner connected 

14 



Proeets. 



Practice. 



106 MISCELLANEOUS PBOYISIONS. 

with any proceedings of which the court has jurisdiction, 
and he shall have power to issue citations and subpoenas 
upon the application of any party, without the order of the 
judge, except in those cases in which such order is specially 
required by law for the issuing of a citation. 

§ 292. All writs and processes issuing from the probate 
court shall be signed by the clerk and authenticated with 
the seal of the court, except subpoenas, which need not be 
under seal. 

§ 293. The practice in the district court shall be applica- 
ble to proceedings in the probate court, so far as the same 
does not conflict with any enactment specially applicable to 
the probate court, or is not inconsistent with the provisions 
of this act, or the act to provide for the appointment and 
prescribe the duties of guardians. 

In what eases ^ ^^^* ^^^^^^ ^^ ^^^^ joiucd iu the probatc court, shall be 
SltrictcouJr***^®^^^^^^ ^y ^^® probate judge to a district court of the same 
county for trial, on the application of any person interested 
in, or to be affected by, the decision thereof, in the cases fol- 
lowing : Ist, on granting or revoking letters testamentary 
or of administration ; 2d, on admitting a will to probate ; 
8d, on revoking the probate, or determining the validity of 
a will ; 4th, on setting apart property, or making allow- 
ances for a widow or child ; 5th, on application for the sale 
or conveyance of real property ; 6th, on the settlement of 
an executor or administrator ; 7th, on declaring, allowing, 
or directing the payment of a debt, legacy, claim, or dis- 
tributive share of the estate, (a.) 

[Forms Ko. 25, 26 and 164, Appendix.] 

§ 295. A probate judge shall certify to a district court 
tifJinguJu^setclfor trial, any issue of fact, mentioned in the preceding sec- 
tion, when a motion or application is made therefor, to the 
probate court, in the manner following : 1st, on motion made 
in open court after notice, and publication (if any is re- 
quired) of the hearing or trial of the issue in the probate 
court, shall have been given and made according to law ; an 
entry of which motion shall be made in the minutes ; 2d, on 
filing a written notice with the clerk of the probate court, 

(a,) Amended May 7, 1855. Statute 1855, p. 300, section 6; Original 
section Statute, 1851, p. 486 ; Compiled Laws, p. 420. 



how trl- 
diatiiot 



MISCELLANEOUS PBOYISIONB. 107 

at any time within ten days after trial and decision therein, 
by the probate court, to the effect that the applicant re- 
quires the issue to be certified to a district court for trial ; 
pr(wided, if said trial has been had since the first day of Oc- 
tober, one thousand, eight hundred and fifty-four, said notice 
may be given at any time within thii^ty days after the pas- 
sage of this act. (a.) 

So much of this section as provides for the transfer to the district court of 
issues of fact already decided in the probate court, has been declared uncon- 
stitutional and void, upon the ground that its effect is, indirectly to confer ap- 
pellate jurisdiction upon the district court. 

See opinion m Deck's JSetate v. Qherke^ 6 Cal. R., p. 669. 

§ 296. An issue certified by a probate court to a district ^^"^' 
court, shall be tried like any other issue of fact in the dis- <»"*• 
trict court ; and at the trial, like objection and exception to 
the decisions of the court, may be taken and settled ; after 
the trial of such issue, the district court shall remit the pro- 
ceedings upon such trial, together with the finding and de- 
cision, to the probate court, which shall form part of the 
record of the cause in the probate court. The probate court 
shall render judgment according to the finding and decision 
in the district court. (6.) 

§ 297. An appeal may be taken to the supreme court, from Appeal to su- 
an order, decree, or judgment, of the probate court, where SSS *ca8e«. 
the estate or amount in dispute, exceeds two hundred dol- 
lars, in the following cases : 1st, for or against granting or 
revoking letters testamentary or of administration ; 2d, for 
or against admitting a will to probate ; 8d, for or against 
the validity of a will, or revoking the probate thereof ; 4th, 
for or against setting apart property, or making an allow- 
ance for a widow or child ; 5th, for or against directing the 
sale or conveyance of real property ; 6th, on the settlement 
of an executor or administrator ; 7th, for or against declar- 
ing, allowing, or directing the payment of a debt, claim, 
legacy or distributive share, (c.) 



(a.) Amended May 7, 1855. Statute 1855, p. 300, Sec. 6 ; original section, 
Statute 1851, p. 487 ; Compiled Laws, p. 420. 

(&.) Amended May 7, 1855. Statute 1855, p. 301, Sec. 7 ; original section, 
Statute 1851, p. 487 ; Compiled Laws, p. 421. 

(<?.) Amended May 7, 1855. Statute 1855, p. 301, Sec. 8 ; original section, 
statute 1851, p. 487 j Compiled Laws, p. 421. 



108 KtSCBLLAKEOnS FROTISIOlfS. 

§ 298. The appeal may be taken within sixty days after 
Within what the order, decree, or judgment is made and entered in the 
minutes of the court ; it shall be made by filing with the 
clerk of the probate court, a notice stating the appeal from 
the order, decree or judgment, or some specific part thereof, 
How taken and and by exocuting an undertaking, or giving surety on such 
appeal in the same manner, and to the same extent as upon 
an appeal to the supreme court from the district court ; pro- 
vided^ the appeal of an executor or administrator, who has 
given an official bond, shall be complete and effectual with- 
Undertaking by Qut the Undertaking ; providedj aho, from an order, decree 
diapena^with. or judgment, made since the first day of October, one thou- 
sand eight hundred and fifty-four ; the appeal may be taken 
within sixty days after the passage of this act. After the 
Suit on under ^PP®^^ ^^ determined, suit may be brought and prosecuted 
**king. iQ judgment on the undertaking, in the name of any party 

beneficially interested therein, (a.) 

§ 299. When a party, who has a right to appeal, wishes a 
statement of the case, to be annexed to the record, he shall 
be a™xSto*r^ prepare and file the same within twenty days after the en- 
'^^^' try of the order, decree, or judgment ; provided, if the order, 

decree, or judgment, has been made since the first day of 
October, one thousand eight hundred and fifty-four, he shall 
prepare and file such statement within twenty days after the 
passage of this act. (6.) 

% 800. The provisions, as amended, of chapter one, title 

the^rti?? Act^^^®» ^^ ^^ ^^* entitled " An act to regulate proceedings in 
made appUcabie, (jiyil cascs, iu the courts of justicc in this State," passed 
April twenty-ninth, one thousand eight hundred and fifty- 
one, so far as the same do not conflict with tiie provisions of 
this act, shall be applicable to appeals from the probate 
court, (c.) 

The proviBions of the Practice Act, referred to in the foregoing section 
have either been declared unconstitutional, or have become inoperative by the 
amendments to sections 295 to 301, inclusive. Compare sections 363 to 366, 
inclusive, of the Practice Act, and sections 296, 296, 297, 298 and 300, anU, 



(a.) Amended May 7, 1855. Statute 1855, p. 301, Sec. 9 ; original section, 
Statute 1851, p. 487 ; Compiled Laws, p. 421. 

(6.) Amended May 7, 1856. Statute 1865, p. 301, Sec. 10 ; original section, 
Statute 1851, p. 487 ; Compiled Laws, p. 421. 

(e.) Amended May 7, 1855. Statute 1855, p. 302, 11. 



PUBLIG ADVINIBTBATOBS. 109 

§ 301. When an issue is certified for trial, the clerk of Paper^ etc , 
the probate court shall transmit all papers and records arS^seat tii 
necessary for the trial of the issue, to the district court. 
After such trial, the clerk of the district court shall return 
the same with the proceedings of the court to the probate 
court, (a.) 

See Sec. 314, post. 

§ 302. Where it is not otherwise prescribed by law, the costs. 
probate court, or the supreme court on appeal, may, in its 
discretion order costs to be pq,id by any party to the pro- 
ceedings, or out of the estate, as justice may require ; exe- 
cution for the costs may issue out of the probate court, (a.) 



I ■■* t 



CHAPTER XIV. 

PUBLIC ADMINISTRATORS. (6.) 

[The following five aeotions are taken from the act of April 15, 1855, '^ Con- 
cerning the office of pubUc administrator^ and making it elective." Com- 
piled Laws, p. 846.] 

h 302 A. rSec. 1.1 There shall be elected at the general _,„ , , 
election in and for each of the counties of this State, by theist»*o'-Hi8eieo- 

' •' tion and term of 

electors thereof, a public administrator, who shall continue offi<». 
in oflBice for the term of two years, and until his successor is 
elected and qualified, (c.) 

§ 302 B. [Sec. 2.] Before entering upon the duties of his 
office, he shall execute a bond, with sureties to be approved ^o execute bond. 
by the probate judge, in a sum not less than thirty thousand condition and 
dollars, and which may at any time be increased, in the dis-*™**^** 
cretion of the probate judge, conditioned for the faithful 
performance of all the duties enjoined upon him by law, and 

(a.) Amended, Statute 1855, p. 302, Sees. 12 and 13. 

(&.) See cases noted at the end of the chapter. 

{e.) Amended by act of April 4, 1854. Statute 1854, p. 27. The original 
section did not fix the term of the office. 



110 PUBLIC ADMINISTBATOBS. 

particularly that he will account for, and pay over, all 
DiBcretion of moneys and property that may come into his hands as such 
a geas am . p^|^jj^ administrator ; provided, that the probate judge may 
in his discretion, for good reason shown, fix the amount of 
the bond to be given by the public administrator, at any 
sum, not less than fifteen thousand dollars, (a.) 

Sec. 2 of the act " Concerning the office of public administrator for the 
county of San Francisco," (Compiled Laws, p. 848.,) fibred the bond of the pub 
lie administrator for that county, at the sum of fifty thousand dollars. That 
act was passed March 8, 1851. The act ^^ Concerning the office of public ad- 
ministrator," etc., was passed April 15, 1851 ; and the former act would seem 
to be repealed, by the efifect of sections 1 and 10 of the latter. 

See Sec. 302 A., cmte, and observation under section 302 E., post. 

Duties and com- § 302 C. [Soc. 3.] Hc shall pcrform such duties, and re- 
ceive such compensation, as may be prescribed by law. 

§ 302 D. [Sec. 4.] No public administrator now in ofl&ce, 

or hereafter elected under this act, shall be interested, di- 

eeted or asBociat- rcctlv or iudircctly, in expenditures of any kind, made on 

ed in business, •' j i r j i 

etc. account of any estates of deceased persons ; nor shall he be 

associated in business or otherwise, with any person who 
shall be so interested ; and he shall annex to his report 
every six months, as required by this act, an affidavit taken 
before a county or district judge to that eflFect. 

§ 302 B. [Sec. 5.] The public administrator, shall once in 
Tomakeretum^v^ry six mouths, make to the probate judge, under oath, a 
S^SjjJ!*' "°'^" return of all estates of deceased persons, which have come 
into his hands, the value of the same, the expenses, if any 
paid thereon, and the balance, if any, remaining in his 
hands ; said return to be published six times in some news- 
pubu^. ^ ^ paper in the county, or if there be no newspaper published 
Or posted. in the county, then it shall be posted, legibly written, or 
printed, in the office of the county clerk of the county ; and 
he shall, after a final settlement of the affairs of any estate, 
Moneys unciaim- if thcro bc uo hcir Or hcirs, or other claimant thereof, pay 
^' over to the county treasurer, to be by him paid into the 

State treasury, all moneys and effects in his hands, belong- 
ing to said estate ; and in the event of all or any such 



(a.) Amended May 7, 1855. Statute 1865, p. 299. The original section 
fixed the bond at " not less than thirty thousand dollars," to be increased (but 
not diminished) in the discretion of the probate judge. Compiled Laws, 
p. 847. 



PUBLIO ADMimSTBATOBS. Ill 

moneys and effects having escheated to the State, the same 
shall be disposed of as other escheated estates, (a.) 

See act of May 4, 1862, ** Concerning escheated estates," post sections 327 
to 335. 

The remaining sections of this act, of April 15, 1861, hare been repealed 
or become inoperative. Sections 6, 7 and 8, were temporary in their object, 
and have been executed. Section 9, which provided that the district jadge, of 
the district embracing the county in which a vacancy should occur in the of- 
fice of public administrator, " should appoint some suitable person to fill the 
same,'' has been repealed. (Statute 1854, p. 27.) Sec. 10, which is the con- 
cluding section, repeals " All provisions of law conflicting with this act" 

[The three following sections are taken from the act of May 18, 1863, " Re- 
quiring county treasurers, and public administrators to settle their accounts." 
Compiled Laws, p. 849.] 

§ 302 F. [Sec. 2.] Public administrators in their respec- when to setti* 
tive counties are hereby required to settle and adjust their ^^^^ 
accounts, relating to the collection, care and disbursement, 
of money or property, belonging to the estates of deceased 
persons, with the county clerk, on the first Monday of each 
month. 

§ 302 G. rSec. 3.r Such county treasurers and public ad- „, , 

, , i. 1 statement un 

ministrators, for the purpose of making such settlement, ^•'o^th. 
shall make out a statement, under oath, of the amount of 
money or other property received preceding such settle- 
ment, and up to the period of such settlement, the sources ^^^^^^^ 
from whence the same was derived, the amount of payment 
or disbursements, and to whom, with the amount remaining 
on hand ; such statement shall be verified by the oath of 
such party to be a true and correct statement of the same. 

§ 302 H. [Sec. 4.] Any officer as aforesaid, failing or re- 
fusing to make such statement and settlement as aforesaid, penauy for w- 
shall, for the first offence, upon conviction thereof by a com-®^*****^ 
potent court, be deemed guilty of a misdemeanor, and pun- 
ishable by a fine not less than fifty dollars nor more than 
five hundred dollars, and for the second offence, on convic- 
tion thereof, be liable in addition to such fine to be removed 
from office by the judgment of the court of sessions of such 
county. 

§303. For any wilful misdemeanor in office, the public misdemmor 'in 

office. 

(a.) Amended May 7, 1855. Statute 1855, p. 299, Sec. 2 ; original section, 
Statute 1851, p. 206 ; GompUed Laws, p. 846. 



The like. 



112 PUBLIC ADlOmSTBATOBS. 

administrator may be indicted and fined in any sum, not exr 
ceeding two thousand dollars, and removed from office. 

^ 804. Whenever any stranger or person without known 
in ^hM^e^SSw heirs shall die intestate in house or premises of any other 
Btranger shall die p^j^g^j^^ it shall bo the duty of such person, or any one 

knowing thereof, to give immediate notice to the public ad- 
ministrator ; and in default thereof he shall be liable to any 
damage that may be sustained thereby, to be recovered by 
the public administrator, or any party interested. 

§ 305. He shall make a perfect inventory of all such 

administrator ostatc takcu luto his posscssiou, and administer an account 

for the same as near as circumstances will permit, according 

to the law prescribing the duties of administratioui subject 

to the control and direction of the probate court. 

§ 306. If at any time letters testamentary or of adminis- 
tration be regularly granted ^on such estate to any other 
person, he shall, under the order of the probate court, 
account for, pay and deliver to the executor or administra- 
tor thus appointed, all the money, property, papers, and 
estate of every kind in his possession. 

offloen to gire § ^07. It shall bc the duty of all civil officers to inform 
notice of waste. ^^ pubUc administrator of all property and estate known 
to them, which is liable to injury or waste, and which by 
law ought to be in the possession of the public adminis- 
trator. 

§ 308. The public administrator shall institute all man* 
perty*'o?'d5ce-ner of suits and prosecutions that may be necessary to 
^^^^' recover the property, debts, papers, or other estate of the 

person deceased. 

§ 309. If the public administrator shall complain to the 
embezzfing" pro- probate judge, on oath, that any person has concealed, em- 
^ ^'^ ' laezzled, or disposed of, or has in his possession any money, 
goods, property, or effects to the possession of which said 
administrator is entitled in his official capacity, the judge 
may cite such person to appear before the probate court, 
and may examine him on oath touching the matter of such 
complaint. 

atation etc § 310. If the person so cited refuse to appear and to sub- 
how enforced. ' mit to such au cxamiuatiou, or to answer to such interroga- 



Public adminiii- 



PUBLIO ADMIBrBTBATOBB. 118 

tories as may be put to him touching the matter of such 
complaint, the court may, by warrant for that purpose, com- 
mit him to the county jail, there to remain in close custody 
until he shall submit to the order of the court ; and all such 
interrogations and answers shall be in writing, and shall be 
signed by the party examined, and filed in the probate courts 

§ 311. The probate court may, at any time, order the pub- 
lic administrator to account for and deliver all the money ^^^^^^t] 
and property of any estate in his hands to the heirs or to the«*<^* 
executors or administrators regularly appointed. 

§ 312. The public administrator shall render a yearly ac- 
count to the county auditor of: First, a list of the estates y^^iJ^'^^'^J* 
which have come under his charge, the condition in which 
they are at the time of reporting, the disposition which has 
been made of any during the year. Second, the sums of 
money which have come into his hands, in each estate, and 
what disposition has been made of them, and the amount of 
his fees ; which said amount shall be published in at least 
two journals of the State, one of which shall be in his own 
county, if there is one published, 

§ 313. The act entitled " An act to regulate the settlement pormeractrej 
of the estate of deceased persons," passed April twenty-'^*' 
second, eighteen hundred and fifty, is hereby repealed, but 
the validity of any proceedings heretofore had or com* 
menced shall not be affected hereby. 

§ 314. All other issues of fact, joined in the probate court, 
shall be disposed of in the same manner as is provided in feet. 
section twenty of this act, for issues joined on application 
for probate of wills, (a.) 

See sections 294 to 296, and section 301, afUey as to issaes in the probata 
court. 

[Fonns No. 25, 26 and 164:, Appendix.] 

§ 314 A. [Sec. 1.] The fees of public administrator, shall of ^Si^aSSn^ 
be four per cent, upon the amount of the estates adminis- ^^^'' 
tered by them, which per centage shall be the only compen- 
sation allowed for their services. (6.) 

(a.) This section was added to the Probate Act, by the act of April 23, 
1855. (Statute 1855, p. 133, Sec. 5.) Its proper place, would seem to be 
after section 294. 

(6.) Section 1 of Act of April 28, 1851, " Concerning the fees of pubUc ad- 
ministrator," Statute 1851, p. 525. 

16 



1 



114 PUBLIC ABMINISTBATOBS. 

CoMS hea/ring upon the subfed mattei' of the preceding chapter. 

The public adminifitrator is personally liable apon a contract made in rela- 
tion to estates upon which he administers, unless the idea of such personal 
liaUlity be excluded by the contract. Dvnndle v. Henriquez^ 1 Cal. R., 387. 

The intention of the 14th chapter of the act concerning the estates of de- 
ceased persons, seems to be that the public administrator should at once take 
possession of the estate of all persons dying without known heirs. Beckett v. 
Seller, 7 Cal. R., 216. 

As to the right of the public administrator to take possession of any par- 
ticular estate under the 304th and 306th sections, it would seem to be in vir- 
tue of his office, and he must deliver it up to the person showing himself enti- 
tled thereto. Ih, 

It seems that the public administrator is entitled to administration upon all 
estates not otherwise administered. Ih. 

And see Sec. 52, ante, and cases noted. 

As -the public administrator is required to give bond, and take the official 
oath, it seems to have been the intention of the statute to dispense with the 
bond and oath required of other administrators, in each particular case. Ih, 

There must be a judicial grant of administration to the public administra- 
tor in each particular case. His commission, therefore, cannot prove that he 
is the regular administrator iQ)on the particular estate ; he must show a grant 
of administration, like any other administrator. Ih, 

But where the court made a regular order that letters should issue to the 
public administrator, as no bond or oath was required as a condition prece- 
dent, the omission to issue the letters, is not fatal. Ih, 

Being nearer of kin to the decedent, than any other person in the United 
States, does not give a right to administer ; if the next of kin is not here, or is 
legally disqualified, the public administrator is entitled to administer. The 
Pvb, Admr, v. WeUs, 1 Paige, 347. 

The public administrator has no power under the act relative to persons 
dying intestate, etc., to administer on goods shipped at a foreign port and ar- 
riving here after the death of the intestate. Ha/aimond v. McLeay 2 Johnson's 
Ch. R., 493. 

The act referred to in this case, provides ^^ That whenever any person, not 
resident within this State, shall die intestate, leaving goods and chattels within 
the city of New York, and the widow or next of kin, residing in this State, 
should not within thirty days after citation, take out letters of administration, 
the same should be granted to the public administrator." Laws N. Y., Session 
38, Ch., 167. 



CHAPTER XV. 



DESCENTS AND DISTRIBUTIONS. 



[Act of April 13, 1850, to regulate descents and distributions.] 

§ 315. [Sec. 1.] When any person, having title to any 
estate not otherwise limited by marriage contract, shall die 

, y d I Descent of ea- 

in testate as to such estate, it shall descend and be distrib-tates of intes- 
uted, subject to the payment of his or her debts, in the fol- 
lowing manner : 1. If there be a surviving husband or wife, 
and only one child, or the lawful issue of one child, in equal 
shares to the surviving husband or wife, and child, or issue 
of such child. If there be a surviving husband or wife, 
and more than one child living, or one child living, and the 
lawful issue of one or more deceased children, one third to 
the surviving husband or wife, and the remainder in equal 
shares to his or her children, and to the lawful issue of any 
deceased child, by right of representation. If there be no 
child of the intestate living at his or her death, the remain- 
der shall go to all of his or her lineal descendants ; and if all 
the said descendants are in the same degree of kindred to 
the intestate, they shall share equally, otherwise they shall 
take according to the right of representation. 2. If he or 
she shall leave no issue, the estate shall go in equal shares 
to the surviving husband or wife, and to the intestate's 
father. If he or she shall leave no issue, or husband or 
wife, the estate shall go to his or her father. 3. If there be 
no issue, nor husband, nor wife, nor father, then in equal 
shares to the brothers and sisters of the intestate, and to 
the children of any deceased brother or sister, by right of rep- 
resentation : provided, that if he or she shall leave a mother 
also, she shall take an equal share with the brothers and 
Bisters. 4. If the intestate shall leave no issue, nor hus- 
band, nor wife, nor father, and no brother or sister living at 
his or her death, the estate shall go to his or her mother, to 
the exclusion of the issue, if any, of deceased brothers or 



116 DESCENTS AND DISTBIBUTIONS. 

sisters. 5. If the intestate shall leave a surviving husband 
or wife, and no issue, and no father, mother, brother, or sis- 
ter, the whole estate shall go to the surviving husband or 
wife. 6. If the intestate shall leave no issue, nor husband* 
nor wife, and no father, mother, brother, nor sister, the 
estate shall go to the next of kin in equal degree : except, 
ing, that when there are two or more collateral kindred in 
equal degree, but claiming through different ancestors, those 
who claimed through the nearest ancestors shall be preferred 
to those claiming through an ancestor more remote : provi- 
videdf however, Y. If any person shall die, leaving several 
children, or leaving one child, and the issue of one or more 
other children, and any such surviving child shall die, under 
age, and not having been married, all the estate that came 
to the deceased child by inheritance from such deceased 
parent, shall descend in equal shares to the other children 
of the same parent, and to the issue of any such other chil- 
dren who shall have died, by right of representation. 8. If, 
at the death of such child, who shall die under age, and not 
having been married, all the other children of his said pa- 
rent shall also be dead, and any of them shall have left 
issue, the estate that came to such child by inheritance from 
his said parent shall descend to all the issue of other chil- 
dren of the same parent ; and if all the said issue are in the 
same degree of kindred to said child, they shall share the 
said estate equally, otherwise they shall take according to 
the right of representation. 9. If the intestate shall leave 
no husband or wife, nor kindred, the estate shall escheat to 
the State, for the support of common schools. 

§ 316. fSec. 2.J Every illegitimate child shall be consid- 
luegitimate ©^cd as an heir of the person who shall, in writing, signed 
children. ^^ ^^^ prescnco of a competent witness, have acknowledged 

himself to be the father of such child ; and shall in all cases 
be considered as heir of his mother, and shall inherit his or 
her estate, in whole or in part, as the case may be, in the 
same manner as if he had been born in lawful wedlock ; but 
he shall not be allowed to claim, as representing his father 
or mother, any part of the estate of his or her kindred, either 
lineal or collateral, unless, before his death, his parents shall 
have intermarried, and his father, after such marriage, shall 
have acknowledged him as aforesaid, or adopted him into 
his family ; in which case such child and all the legitimate 



DBSGElfTS AND DIBTBIBUTIONS, 117 

children shall be considered as broilers and sisters^ and on 
the death of either of them, intestate, and without issue, the 
others shall inherit his estate, and he theirs, as hereinbefore 
provided, in like manner as if all the children had been le- 
gitimate ; saving to the father and mother respectively, 
their rights in the estates of all the said children, as provi- 
ded hereinbefore, in like mantier as if all had been legiti- 
mate. The issue of all marriages deemed null in law, or 
dissolved by divorce, shall be legitimate. 

This proTisioB of the statate is in derogation of the common law, and most 
therefore be strictly construed. To entitle one to claim under it, the evidence 
adduced ought to be clear enough to exclude all except one interpretation. 
Nor do we, in deciding the case upon this ground, intend to intimate that any 
writing containing the evidence required would be sufficient to create an heir 
under the statute, where it appears upon the face of the instrument that there 
existed no such object or intention at the time it was made. Opinion in Estate 
df Sandford, 4 Cal. R., 12. 

The issue of marriages, deemed null in laW, are legitimated by the statute^ 
without regard to the grounds of nvMityt and are consequently endowed with 
all the rights of the legitimate issu^. HartweU v. Jackson^ 7 Texas R., 676. 

§317. [Sec. 8.] If any illegitimate child shall die intes- The same, 
tate, without lawful issue, his estate shall descend to his 
mother, or, in case of her decease, to her heirs at law. 

§ 318, [Sec. 4.] The degrees of kindred shall be compu- 
ted according to the rules of the civil law, and kindred of Degrees of kin 
the half blood shall inherit equally with those of the whole pSed.^ ihe^hSf 
blood, in the same degree, unless the inheritance come to "^ ' 
the intestate by descent, devise, or gift of some one of his 
ancestors, in which case all those who are not of the blood 
of such ancestors, shall be excluded from such inheritance. 

§ 319. [Sec. 5.] Any estate, real or personal, that may 
have been given by the intestate in his lifetime, as an ad- 
vancement to any child, or other lineal descendant, shall be 
considered as a part of the estate of the intestate, so far as 
it regards the division and distribution thereof among his 
issue, and shall be taken by such child, or other lineal de- 
scendant, towards his share of the estate of the intestate. 



Advancements. 



§ 320. [Sec. 6.] If the amount of such advancement shall 
exceed the share of the heirs so advanced, he shall be ex- 
cluded from any further portion, in the division and distri- 
bution of the estate, but he shall not be required to refund 
any part of such advancement ; and if the amount so re- 



The same. 



118 BESCEKTS AKD DISTBIBUTIONS. 

ceivcd shall be less than his share, he shall be entitled to as 
much more as will give him his fall share of the estate of the 
deceased. 

«... . § 321. rSec. 7.1 All gifts and grants shall be deemed to 

What deemed o L J o o 

adTancementa. Jiave bcen made in advancement, if they are expressed in the 
gift or grant to be so made, or if charged in writing by the 
intestate as an advancement, or acknowledged in writing as 
such, by the child or other descendant. 

§ 322. [Sec. 8.] If the value of the estate so advanced, 
how*axed'*^^*' shall be expressed in the conveyance, or in the charge 
thereof made by the intestate, or in the acknowledgment of 
the party receiving it, it shall be considered as of that 
value, in the division and distribution of the estate : other- 
wise, it shall be estimated according to its value when given, 
as nearly as the same can be ascertained. 

§ 323. [Sec. 9.] If any child, or other lineal descendant 
advJS'c^^dS^r^"^^ advanced, shall die before the intestate, leaving issue, the 
fore intestate, advancement shall be taken into consideration, in the divis- 
ion and distribution of the estate, and the amount thereof 
shall be allowed accordingly, by the representatives of the 
heirs so advanced, in the like manner as if the advancement 
had been made directly to them. 

§ 324. [Sec. 10.] The provisiops of this act, as to the in- 
huBband and wife heritance of the husband and wife from each other, apply 

from each other. n i • 

only to the separate property of the intestate. 

§325. [Sec. 11.] Inheritance or succession "by right of 

Inheritance by representation," takes place when the descendants of any 

representation. ^Qcgased hcir take the same share or right in the estate of 

another person that their parents would have taken if living. 

Posthumous children are considered as living at the death 

of their parents. 

[Act of April 19, 1866.] 

§ 326 [Sec. l.J Aliens shall hereafter inherit, and hold by 
Aliens may in- inheritance, real and personal estate, in as full a manner as 
though they were native born citizens of this, or the United 
Non-reaident Statcs ; providedj that no non-resident foreigner or foreign- 
ers, shall hold or enjoy any real estate situated within the 
limits of the State of California, five years after the time 
such non-resident foreigner or foreigners shall inherit the 



DESGBNTS AND BISTBIBUTIONS. 119 

same ; but in case such non-resident foreigner or foreigners 
do not appear or claim such estate within the period in this 
section before mentioned; then such estate shall be sold 
upon information of the attorney general, according to law, 
and the proceeds deposited in the treasury of said State, for 
the benefit of such non-resident foreigner or foreigners, or 
their legal representatives, to be paid to them by the treasu- 
rer of said State, at any time within five years thereafter, 
when such non-resident foreigner or foreigners, or their rep- 
resentatives, shall produce evidence to the satisfaction of 
the treasurer and controller of State, that such foreigner or 
foreigners, are the legal heirs to, and entitled to inherit such 
estate, which evidence, together with the joint order of the 
said treasurer and controller, shall be placed on file in the 
office of the treasurer, and shall be to him a voucher for any 
payments made by him under the provisions of this act ; and 
in the event that such non-resident foreigner or foreigners 
do not appear or claim said estate or proceeds, and produce 
said evidence within said extended term of five years, then 
said estate or proceeds, shall be and become the property of 
the State, and shall be by the treasurer of State, placed to 
the credit of the school fund. 

The foUowing cases are under the law as it stood before the passage of the 
foregoing section : 

An alien cannot be deprived of his land, or of any rights incident to its 
ownership, by proof of his alienage in a coUateral proceeding. Ramders v. 
Kent et dl,, 2 Cal. R., 558. 

The estate purchased by an alien, does not vest in the sovereign, till << ofSce 
fonnd ;'' until then,. the alien is seized, and may sustain actions for injuries to 
the property. lb. 

The relation of landlord and tenant may exist, where the landlord is an alien 
non-resident, and is obligatory upon the tenant, and he cannot be allowed to 
controvert the title of the lessor. lb. 

An alien may hold real estate against every one, and even against the gov- 
erment, uniU office fownd. The People ex rel.j The Attorney Oenerai v. Fol- 
torn, 5 Cal. R., 373. 

Laws regulating the admission of foreigners and aliens, and placing them 
under peculiar disabilities, and especially those relative to escheats, are politi- 
cal in their character. The policy of the government of the United States has 
been to encourage the immigration of foreigners, and to this extent a system 
of pre-emption has been adopted in all the territories, and new States, in 
which there is no discrimination between foreigners and native citizens. lb. 

Foreigners can hold property in all the territories, and may inherit, in ihe 
absence of legislation upon this subject. lb. 

By the civil law, as well as the common law, the King cannot take upon 
himself the possession of an estate said to have escheated, until the fact is ju- 
diciaUy ascertained by a proceeding in the nature of an Inquest of oflSce. lb.. 



120 B80HBATED X8TATBS. 

The Mexican law of eecheats did not remain in force in Galifomia, nntU tiie 
ratification of the treaty of Guadalupe Hidalgo ; this law was abrogated by 
the conquest of the country by the Americans, so far as citizens of the United 
States and aliens were afi^ted. Jh, 



m*m 



CHAPTER XVI. 

ESOHBATED ESTATES. 

[Act of Kay ^ 1852, concerning escheated estates. Statute 1652, p. 103; 

Gompued Laws, p. 322.] 

§ 827. [Sec. 1.] If any person shall die, or any persoB 
Estate of per. who may havo died within the limits of what is now the 
oat heirs, etc.. t^ State of California, seized of any real or personal estate, and 
state. leaying no heirs, representatives or devisees, capable of in- 

heriting or holding the same, and in all cases when there is 
no owner of such real estate capable of holding the same, 
such estate shall escheat to, and be vested in this State, (a.) 

§ 328. [Sec. 2.] Whenever the attorney general shall be 

informed or have reason to believe that any real estate hath 

Duty of AttOT- escheated to this State, by reason that any person hath died 

ney General in ' •' •' -^ 

regard toescheat- Bcizcd thcrcof, and hath left no heirs capable of inheriting the 

ed estates. ' • *^ ° 

same, or by reason of the incapacity of the devisees to hold the 
same, or when he shall be informed, or have reason to believe, 
that any such estate hath otherwise escheated to the State, it 
shall be his duty to file an information in behalf of the State, 
in the District Court of the Judicial District in which such es- 
tate, or any part thereof is situated, setting forth a descrip- 
tion of the estate, the name of the terre-tenant, and persons 
claiming such estate, if known, and the facts and circum- 
stances in consequence of which said estate is claimed to 
have escheated, and alleging that by reason thereof the State 
of California hath right by law to such estate } whereupon 
such court shall award and issue a summons against such per- 
son or persons, bodies politic or corporate, alleged in such 

(a.) Amended April 30, 1855. Statute 1855, p. 221, Sec. 1. 



SSGHBATED ESTATES. 121 

information, to hold, possess or claim such estate, requiring 
them to appear and show cause why such estate should not 
be Tested in the State within the time allowed by law, in 
other civil cases, and the court shall make an order setting 
forth briefly the contents of said information, and requiring 
all persons interested in the estate, to appear and show cause, 
if any they have, within thirty days from the date of said 
order, why the same should not vest in this State ; which 
order shall be published at least one month from the date 
thereof, in a newspaper published in said district, if one be 
published therein, and in case no newspaper should be pub* 
lished in said district (by direction of the judge) in some 
other newspaper in this State, (a.) 

§ 329. [Sec. 3.] All persons, bodies politic and corporate, Appearance, 
named in such information as terre-tenant , or claimant to the ^Sl^^^ ""^ ^' 
estate, may appear and plead to such proceedings, and may 
traverse or deny the facts stated in the information, the title 
of the State to lands and tenements therein mentioned, at 
any time on or before the third day of the return day of the 
summons ; and any other person claiming an interest in such 
estate, may appear and be made a defendant, and plead as 
aforesaid, by motion for that purpose in open court, within 
the time allowed for pleading as aforesaid ; and if any per- 
son shall appear and plead as aforesaid, or shall refuse to 
plead within the time, then judgment shall be rendered 
that the State be seized of the lands and tenements in 
such information claimed. But if any person shall ap- 
pear and deny the title set up by the State, or traverse 
any material fact set forth in the information, or issue 
or issues, shall be made up and tried as other issues of 
fact, and a survey may be ordered and entered as in 
other actions when the title or boundary is drawn in ques- 
tion ; and if after the issues are tried, it shall appear from 
the facts, found or admitted, that the State hath good title 
to the land and tenements in the information mentioned, or 
any part thereof, judgment shall be rendered that the State 
be seized thereof, and recover costs of suit against the de- 
fendants. 

§ 330. [Sec. 4.] Any party who shall have appeared to any 

(a.) Amended Statutes, 1856, p. 221, sec. 2. 

16 



122 ESCHEATED ESTATES. 

proceedings as aforesaid, and the attorney-general in behalf 
Appeal maj be of the State, shall respectively have the same right to pros- 
ecute an appeal or writ of error upon any judgment as afore- 
said, as parties in other cases, (a.) 

§ 331. [Sec. 5. J The comptroller of State shall keep just 

Di« ition of *^^^ *^^® accounts of all moneys paid into the treasury, all 

moDey8 paid into lauds vcstcd iu the State, as aforesaid ; and if any person 

treasury, and ' ' '' ^ 

iwd. vented in ghall appear within ten years after the death of the intestate, 
and claim any moneys paid into the treasury, as aforesaid, 
as heir or legal reprefentative, such person may file a peti- 
tion to the district court in which the seat of government 
may be staying, stating the nature of his claim, and praying 
such money may be paid him ; a copy of such petition shall 
^ be served on the attorney general at least twenty days be- 

fore the hearing of said petition, who shall put in answer to 
the same, and the court thereupon shall examine said claim, 
and the allegations and proofs ; and if the court shall find 
that such person is entitled to any money paid into the State 
treasury, he shall by an order, direct the comptroller to is- 
sue his warrant on the treasury for the payment of the same, 
but without interest or cost to the State ; a copy of which 
order, under the seal of the court, shall bo a sufficient vouch- 
er for issuing such warrant ; and if any person shall appear 
and claim land vested in the State, as aforesaid, within five 
years after the judgment was rendered, it shall be lawful for 
such person (other than such as was served with a summons 
or appeared to the proceeding, their heirs or assigns) to file 
in the said district court, in which the lands claimed lie, a 
petition setting forth the nature of his claim, and praying 
that the said lands may be relinquished to him ; a copy of 
which petition shall be served on the attorney-general, who 
shall put in an answer, and the court thereupon shall exam- 
ine said claim, allegations and proofs, and if it shall appear 
that such person is entitled to such land claimed, the court 
shall decree accordingly, which shall be effectual for divest- 
ing the interest of the State in or to the lands ; but no costs 
shall be charged to the State ; and all persons who shall fail 
to appear and tile their petition, within the time limited as 
aforesaid, shall be forever barred ; saving, however, infants, 
married women, and persons of unsound mind, or persons be- 

(a.) Amended Statutes, 1856, p. 222, 8ec. 8. 



ESCHEATED ESTATES. 123 

yond the limits of the United States, the right to appear and 
file their petition, as aforesaid, at any time within five years 
after their respective disabilities are removed : piovided, 
however, that the legislature may cause such lands to be sold 
at any time after seizure, in such manner as may be provided 
by law ; in which case the claimants shall be entitled to the 
proceeds, in lieu of such lands, upon obtaining a decree or 
order as aforesaid. 

[Act of April 80, 1855, amending and supplementary to the foregoing. Stat. 

1855, p. 222, sections 4 to 8, inclusive.] 

§ 382. rSec. 4.1 The said district court, upon the filing of 

.%.«. 1 1.. Ai 1 Receiyer may 

said information and application of the attorney-general, be appointed, 
either before or after answer, upon notice to the party or 
parties claiming such estate, if known, may, sufiScient cause 
therefor being shown, appoint a receiver to take charge and 
receive the rents and profits of the same, until the title to 
such real estate shall be finally settled. 

§ 333. [Sec. 5.] Any person furnishing original informa- ^^^ 

tion to the attorney-general of the escheating of any proper- tied to per cent- 
ty to the State of California, together with the necessary 
evidence to sustain the action of the State in such behalf, 
shall be entitled to receive, upon the final recovery of such 
property, five per centum of the property so recovered ; pro- 
vided that the amount so received by the person or persons 
furnishing such information, shall not in the aggregate ex- 
ceed the sum of twenty thousand dollars in any one case j 
and provided that only one person shall bo entitled to com- 
pensation for such services. 

§ 334. [Sec. 6.] All moneys which have accrued, or may Disposition of 
hereafter accrue to this State from escheated estates, shall "om^^eJchSltSl 
be paid into the general fund, and if need be, [used] in the******"' 
defrayment of the current expenses of the government, and 
the redemption of the controller's warrants. 

§ 336* [Sec. 7.] The amount of such moneys, so received, 
shall be converted by the State controller into bonds of the The like. 
State, bearing seven per cent interest per annum ; which 
bonds shall be kept as a special deposit in the treasury, 
marked " School Fund,'' to be credited to said school fund. 



124 APPOINTMENT AND DUTIES OF GUABDIANS. 

All interest falling doe on said bonds so set apart, shall be 
semi-annually placed to the credit of said school fund. 

[Sec. 8 of this Supplementary Act merely declares that ** All laws or parts 
of laws, in conflict with this Act/' (sections 827 to 885 inclusive) " are here- 
by repealed."] 



••^i«^>»- 



CHAPTER XVII. 

THE APPOINTMENT AND DUTIES OF GUARDIANS, (a.) 

[Act of April 10, 1S50, to provide for the appointment and prescribe the du- 
ties of (2;uardians. Compiled Laws, p. 164.] 

§ 336. [Sec. 1.] The Probate Judge of each county, when 

inin!>»'whraa**'^* ^^^^^ appear to him necessary or convenient, may appoint 

i)omt€d. guardians to minors who have no guardian legally appointed 

by will, and who are inhabitants or residents in the same 

county ; or who shall reside without the state and have any 

estate within the county. 

[Forms Nos. 186, 187, 188, 189, 191, 192, Appendix.] 

§ 337. [Sec. 2. J If the minor is under the age of fourteen 
natT^ualMian"* ycars the Probate Judge may nominate and appoint his guar- 
dian ; and if he is above the age of fourteen years he may 
nominate his own guardian, who, if approved by the judge, 
shall be appointed accordingly. 

§ 338. [Sec. 3.] If the guardian nominated by the minor 

In what cftBag shall not be approved by the judge, or if the minor shall 

io?nt, for* miSSr reside out of the state, or if after being duly cited by the 

over fourteen, judge, hc shall ucglcct for tcu days to nominate a suitable 

(a.) See cases noted at the end of this chapter. 

And see the Act of March 18 1868, " to authorize guardians of minors, 
etc., to receive and remove from this state any property to which the ward 
may he entitled ;" potd sec 386. Also, the act of April 10, 1868, *'to provide for 
binding minors as apprentices, clerks and servants," jmm< sec. 889. Also, the act 
of March 27, 1868, conferring certain powers upon the guardians of insane 
persons, having claims for lands derived from Spanish or Mexican authori- 
ties. Stat. 1868, p. 98. 



APPOIlfTMENT AND DUTIBS OF GUABDUHB. 125 

person, the judge may nominate and appoint the guardian in 
the same manner as if the minor were under the age of four- 
teen years. 

[Form No. 198, Appendix ] 

§ 339. [Sec. 4.] When a guardian has been appointed by 
the court for a minor under the age of fourteen years, the inate onJdwS^ 
minor at any time after he attains that ago may appoint iiig***8«®"®^*^^*««»» 
own guardian, subject to the approval of the Probate Judge. 

§ 340. [Sec. 5.] The father of the minor, if living, and in ^^Ymormo^- 
case of his decease the mother while she remains unmarried, «' J^^^ *® 
being themselves respectively competent to transact their 
own business, and not otherwise unsuitable, shall be entitled 
to the guardianship of the minor. 

§ 341. [Sec. 6.] If the minor have no father or mother liv- if no father or 
ing, and competent to have the custody and care of the edu- ™^ 
cation of such minor, the guardian so appointed shall have 
the custody and tuition of his ward. 

§ 342. [Sec. 7.] Every guardian appointed as aforesaid 
shall have the custody and tuition of the minor, and the care duS^*"^ *""' 
and management of his estate until such minor shall arrive 
at the age of twenty-one years, or shall marry ; or until the 
guardian shall be discharged according to law. 

See Statute of AprU 2, 1868, post. Sec 407. 

§ 343. [Sec. 8.] Before appointing any person guardian 
of a minor, the judge shall require of such person a bond to dian." * *^'" 
the minor, with sufficient sureties to be approved by the 
judge, and in such sum as he shall order, conditioned as fol' 

, -_, - , Condition there- 

lows : 1. To make a true inventory of all the estate, realot 

and personal, of his ward, that shall come to his possession 
or knowledge ; and to return the same within such time as 
the judge shall order : 2. To dispose of and manage all 
such estate according to law, and for the best interest of the 
ward, and faithfully to discharge his trust in relation there- 
to ; and also in relation to the care, custody, and education 
of the ward : 3. To render an account on oath of the pro- 
perty, estate, and moneys of the ward in his hands ; and all 
proceeds or interest derived therefrom, and of the manage- 
ment and disposition of the same within one year after bis 
appointment, and at such other times as the court shall di- 



126 APPOINTMENT AND DUTIES OP OUABDIANB. 

rect : and 4. At the expiration of his trust to settle his ac- 
counts with the Probate Judge, or with the ward if he be of 
full age, or his legal representatives ; and to pay over and 
deliver all the estate, moneys, and efiFects remaining in his 
hands, or due from him on such settlement, to the person or 
persons who shall be lawfully entitled thereto. 

[Form No. 190, Appendix.] 
See next section, and sections 874 to 376 poat^ inclnsive. 

§343. A. [Sec. l.J All the provisions of sections seven ty- 

8ecti<mi»ofthe^'g*^*»^^^®°^3^""^°®» eighty, cighty-onc, eighty-two, eighty- 
|^J|^«j^*c'™»'^® three, eighty-four, eighty-five, eighty-six and eighty-seven of 
gaardiaiu. thc Act entitled " An act to regulate the settlement of the es- 
tates of deceased persons, passed May 1st, eighteen hundred 
and fifty-one, are hereby declared to apply to guardians ap- 
And to bonds P^^°*®^ ^^ pursuaucc of thc act, entitled " An act to provide 
given by th«n. foj. i]^q appointment and prescribe the duties of guardians," 
passed April nineteenth, eighteen hundred and fifty, and to the 
bonds taken, or to be taken from such guardians in pursu- 
ance of said last mentioned act, and to the sureties on such 
bonds, (a.) 

See sections 374, 375, 376, post. 

§ 344. [Sec. 9.J If any minor, who has a father living, has 
Maint«»nanceof propertv, thc iucomc of which is suflScient for his mainten- 

minor out of in- *^ '^ •' 

i «o"e o' W8 own ance and education in a manner more expensive than his fa- 

! property. ^ 

ther can reasonably afibrd, regard being had to the situation 
of the father's family, and to all the circumstances of the 
case ; the expenses of the education and maintenance of 
such minor may be defrayed out of the income of his own 
property in whole or in part, as shall be judged reasonable 
and shall be directed by the Probate Court ; and the charg- 
es therefor, may be allowed accordingly in the settlement of 
I the accounts of his guardian. 

§ 345. [Sec. 10.] The father of every legitimate child 

Father may ^^^cl^ is a miuor, may, by his last will in writing, appoint a 

dSS?!*'* * «•**'■ guardian or guardians for his minor children, whether born 

at the time of making such will or afterwards, to continue 

during the minority of such child, or for any less time ; and 

every such testamentary guardian shall give bond in like 

(a.) This is a section supplementary to tbe Guardian act, and was passed 
March 27, 1857. Statutes of 1857, p. 120. 



APPOINTMENT AND DUTIES OF GUABDIANS. 127 

manner, and with like condition as herein before required ; 
and he shall have the same powers, and shall perform the 
same duties with regard to the person and estate of the ward, 
as a guardian appointed as aforesaid. 

§346. rSec. 11.1 Nothing contained in this act shall aflFect „ , _ 

"•-JO ^ Power of courts 

or impair the power of any court to appoint a guardian ^^ ^^^JgPP^'jJ'd' *„*,[!: 
defend the interests of any minor interested in any suit or fiends not im- 
matter pending therein ; nor to appoint or allow any per- 
son, as the next friend of a minor, to commence and prose- 
cute any suit in his behalf. 

§ 347. [Sec. 12.] Whenever it shall be represented to the cases of persoM 
Probate Judge upon petition, under oath, by anj relative orji^^^t^*^**^*^*^'''" 
friend of any insane person, or of any person who, by reason ^*^y^®jj' ^ 
of extreme old age, or other cause, is mentally incompetent i?^^}*^*®^^^^^ 
to manage his property, that such person is insane, or men- 
tally incompetent to manage his property ; said Judge shall 
cause a notice to be given to the supposed insane or incom- 
petent person, of the time and place of hearing the case, not 
less than five days before the time so appointed ; and shall 
also cause such person, if able to attend, to be produced be- 
fore him on the hearing. 

[Forms No 194, 195, Appendix.] 

§ 348. [Sec. 13.] If after a full hearing and examination probate judge 
upon such petition, it shall appear to the Probate Judge that "^Sidunr^* * 
the person in question is incapable of taking care of himself, 
and managing his property, he shall appoint a guardian of 
his person and estate, with the powers and duties hereinaf- 
ter specified. 

[Form No. 196, Appendix.] 

§ 349. [Sec. 14.] Every guardian so appointed, as pro- 
vided in the preceding section, shall have the care and cus-tieaof.uchguar- 
tody of the person of his ward, and the management of all - 
his estate, until such guardian shall be legally di«^charged ; 
and he shall give bond to such ward, in like manner, and 
with like conditions, as before prescribed with respect to the 
guardian of a minor. 

§ 350. [Sec. 15.] Every guardian appointed under the 
provisions of this act, whether for a minor or any other per-debtiduefrSi*^ 
son, Ishall pay all just debts due from the wurd, out of his 
personal estate, and the income of his real estate if sufficient ; 



12S APPOINTiaSNT AND DUTIBS OF aUAlU>IAK8« 

and if not, then out of his real estate, upon obtaining an or* 
der for the sale thereof, and disposing of die same in the 
manner provided by law. 

§851. [Sec. 16.] Every such guardian shall also settle all 
And recover accouuts of the Ward, and demand, sue for, and receive all 

debits due to his ' ' ' 

""^^ debts due to him, or may, with the approbation of the Pro- 

bate Judge, compound for the same, and give a discharge to 
the debtor, on receiving a fair and just dividend of his estate 
and effects ; and he shall appear for and represent bis ward, 
in all legal suits and proceedings, unless where another per* 
son is appointed for that purpose as guardian, or next friend. 

§ 852. [Sep. 17.] Every guardian shall manage the estate 
^^^■f^*"*®'of his ward frugally, and without waste, and apply the in- 
come and profits thereof, aa far as may be necessary for the 
comfortable and suitable maintenance and support of the 
ward, and his family, if there be any ; and if such income and 
taS^* of real es- p,.Qg^;g ^^q insuflScieut for that purpose, the guardian may sell 
the real estate, upon obtaining an order therefor, as provid- 
ed by law, and shall apply the proceeds of such sale, as far 
as may be necessary, for the maintenance and support of the 
ward, and his family, if there be any. 

§358. [Sec. 18.] The guardian may join in and assent to 
Ptotitioo. ^ partition of the real estate of the ward, in the cases and 
in the manner provided by law. 

§ 354. [Sec. 19.] The guardian shall return an inventory 

Inventory ap- of thc cstatc of his Ward, at such time as may be fixed by the 

Snd*a"co^nSng' Court ; thc cstatc and effects comprised therein shall be ap- 

bj guardian, praiscd by three suitable persons, to be appointed and sworn 

in like manner as is required with respect to the inventory 

of the estate of a deceased testator, or intestate ; and every 

guardian shall account for and dispose of the personal estate 

of the ward in like manner as is directed with respect to 

executors and administrators. 

See chiLpter ly. ante. As to accounting by Guardian, see section 370, post' 

§ 855. [Sec. 20.] When the income of the estate of any 

of ^?d taSJlffi* person, under guardianship, shall not be sufScient to main- 

ttSteliS'be**^ tain the ward and his family, or to educate his family, or to 

•old. educate the ward when a minor, his guardian may sell his 

real estate for that purpose, upon obtaining an order there- 

for, and proceeding therein as provided in this act. 



APPOINTMENT AND DOTIBB OP OUAN PIAlff, 129 

§ 356. [Sac. 21.] When it shall appear to the satiafaction 
of tho eourt, upon the petition of the guardiaa, that it would otiMr cmm in 
be for the benefit of his ward, that his real estate, or any may be wid. 
^rt thereof, should be sold, and the proceeds thereof put 
out on interest or invested in somo productive stock ; his 
guardian maj sell the same for that purpose, upon obtaining 
an order therefor, and proceeding therein as hereinafter pro^ 
vided. 

[Form No. 197, IW, Appendix ] 

§ 357. [Sec. 22.] If the estate is sold for the purpose men- 
tioned in the twentieth section of this act, the guardian shall 

° - Diapoution of 

apply the proceeds of the sale to such purpose, so far as ne. proceeds of sale, 
cessary ; and shall put out the residue, if any, on interest^ 
or invest it in the best manner in his power, until the capital 
shall be wanted for the maintenance of the ward and his 
family, or the education of his children, or for the education 
of the ward when a minor, in which case the capital may be 
used for that purpose, as far as may be necessary, in like 
manner as if it had been personal estate of the ward. 

§ 358. [Sec. 23.] If the estate is sold for the purpose of 
putting out or investing the proceeds, as provided in this 
act, the guardian shall make the investment, according to his 
best judgment, or in pursuance of any order that may be 
made by the Probate Court. 

§ 359. [Sec. 24.] To obtain an order for such sale, the 
guardian shall present to the Probate Court of the county 
in which he was appointed guardian, a petition therefor, set- 
ting forth the condition of the estate of his ward, and thoderof sSTe.**'^' 
facts and circumstances on which the petition is founded, 
tending to show the necessity or expediency of a aale ; which 
petition shall be verified by the oath of the petitioner, 

[Form No. 197, Appendix.J 

§ 360. [Sec. 25.] If it shall appear to the court from mob 
petition, that it is necessary, or would be beneficial to the 
ward, that such real estate or some part of it should be sold, j-p^g, to show 
the court shall thereupon make an order, directing the next ^"^^ thereupon. 
of kin of the ward, and all persons interested in the estate, 
to appear before such court at a time and place therein speci- 
fied, not less than four, nor more than eight weeks from the 
time of making such order, to show cause why an order 
should not be granted for the sale of such estate. 

[Fonn No. 19S, Appendix.] 

17 



The same. 



180 



APPOINTMENT AND DUTIBS OF GUABDIAN8. 



Order, how 
■erred. 



The hearing^. 



§ 361. [Sec. 26.] A copy of the order shall be personally 
served on the next of kin of such ward, and on all persons 
interested in the estate, at least fourteen days before the 
hearing of the petition ; or shall be published at least three 
successive weeks, in some newspaper printed in the county ; 
or if there be none printed in the county, then in such news- 
paper as may be specified by the court in such order. 

§ 362. [Sec. 27.] The Probate Judge, at the time and 
place appointed in such order, or such other time as the 
hearing shall be adjourned to, upon proof of the due service 
or publication of the order, shall hear and examine the 
proofs and allegations of the petitioner, and of the next of 
kin, and all other persons interested in the estate who shall 
think proper to oppose the application. 

§ 363. [Sec. 28.] On such hearing the guardian may be 
wiSSe^te!"^'®^^™^^®^ on oath, and witnesses may be produced and ex- 
amined by either party, and process to compel their atten- 
dance and testimony may be issued by the Probate Judge in 
the same manner and with like effect as in other cases. 



Costa.] 



§'364. [Sec. 29.] If any person shall appear and object to 
the granting of any order prayed for under the provisions of 
this act, and it shall appear to the court that either the peti- 
tion or the objection thereto is unreasonable, said court mayi 
in its discretion, award costs to the party prevailing, and 
enforce the payment thereof. 

§ 365. [Sec. 30.] If, after a full examination, it shall ap- 
order of the pear to the court either that it is necessary, or that it would 

eoart, if sales "^ 

found necessary bc for the benefit of the ward, that the real estate or any 
part of it should be sold, such court may grant an order 
therefor, specifying therein whether the sale is to be made 
for the maintenance of the ward and his family, or for the 
education of the ward and his children ; or in order that the 
proceeds may be put out and invested. 

[Form No. 199, Appendix.] 

§ 366. [Sec. 31.] Every guardian authorized to sell real 

B^nd^^^,^. estate, as aforesaid, shall, before the sale, give bond to the 

oS orfer foJ^imS P**^^^^® Judgc, With suflBcicnt sccurity to be approved by 

'^^^' such Judge, with condition to sell the same in the manner 

prescribed by law, for sales of real estate by executors and 



APPOINTMENT AND DUTIES OP OUABDIANS. 131 

administrators ; and to account for, and dispose of the pro- 
ceeds of the sale, in the manner provided by law. 

[Fonn No. 201, Appendix.] 

§ 367. [Sec, 32.] He shall also give public notice of the 
time and place of sale, and shall proceed therein in like man- etc. ^ ^ 
ner as prescribed in the case of a sale of land by an execu- 
tor or administrator ; the same proceedings shall be had as 
to the return of the sale and the confirmation thereof, and 
the order to execute a conveyance, as is prescribed in regard 
to sales of land made by executors or administrators, and 
the confirmation shall have the same force and effect. 

§ 368. [Sec. 33.] No order granted in pursuance of this order to be in 
act, shall be in force more than one year after granting the^*'*^***^* ^®"" 
same. 

§ 369. [Sec. 34.] No action for the recovery of any estate, 
sold by a guardian under the provisions of this act, shall beactiJi°to**^w 
maintained by the ward, or by any person claiming under*' ^ 
him, unle-s it be commenced within three years next after 
the termination of the guardianship, excepting only that mi- 
nors and others under legal disability to sue at the time 
when the cause of action shall accrue, may commence their 
action at any time within three years next after the removal 
of their respective disabilities. 

§ 370. [Sec. 35.] The guardian shall, upon the expiration 
of a year from the time of his appointment, and as often Accounting bj 
thereafter as he may be required, present his account to the*^"*"^ 
Probate Court for settlement and allowance ; and all the 
laws relative to the accounts of executors and administrators 
shall govern in regard to the accounts of a guardian, so far 
as they can be made applicable. 

[Fonns No. 166, 200, Appendix ] 

§371. [Sec. 36.] The Probate Judges in their respective judBdiction of 
counties, on the application of a guardian, or of any person Lferelfce^"^il° 
interested in the estate of any ward, after such notice to all I^y*;? mtoo" ^* 
persons interested therein as the Probate Judge shall direct, 
may authorize and require the guardian to invest the pro- 
ceeds of sales, and also any other money in his hands, in real 
estate, or in any other manner that shall be most to the in- 
terest of all concerned therein ; and the said Probate Court 



132 APPOIKTMEVT AND PUTIS8 OF GUABDIANS. 

may make such further orders, and give such direction as the 
case may require for managing, investing, and disposing of 
the estate and effects in the hands of the guardian. 

BenoraL ftikd ^ ^*^^' t^®^' ^'^ Whou auy guardian, appointed either by 
rMdg^tton of, i]^Q testator or the Probate Judge, shall become insane, or 
otherwise incapable of discharging his trust, or evidently 
unsuitable therefor ; or shall have wasted or mismanaged the 
estate, the Probate Judge, after notice to the guardian, may 
remove him ; and every guardian may, upon request, be al- 
lowed to resign his trust, when it shall appear to the Probate 
Judge proper to allow the same ; and upon every such resig- 
nation or removal, and upon the death of any guardian, the 
Probate Judge may appoint another in his place. 

§ 373. [Sec. 38.] The marriage of any person who is under 

liarriage of mi- guardianship as a minor, shall terminate such guardianship ; 

Gnardisn may and thc guardian of any insane person, or other person, may 

be discharged by the Probate Judge when it shall appear to 

him, on the application of the ward, or otherwise, that such 

guardianship is no longer necessary. 

§ 374. [Sec. 89.] The Probate Judge may require a new 

New bond majhoud to bc givcu by any guardian whenever he shall deem it 

^ D?iIdS?gl of iiecessary , and may discharge the existing sureties from fur- 

■uieties. ^jjgj. liability, after due notice given as such court may direct, 

when it shall appear that no injury can result therefrom to 

those interested in the estate. 

§ 375. [Sec. 40.] Every bond given by a guardian, shall 

•d^te^hJS^^rol' ^® fil®* ^^^ preserved in the oflSce of the Clerk of the Pro- 
eeuted for broach ]^^{q Court of thc county ; and in case of the breach of any 

condition thereof, may be prosecuted in the name of the ward 
for the use and benefit of such ward, or of any person inter- 
ested in the estate. 

§ 376. [Sec. 41.] No action shall be maintained against 

the sureties in any bond given by a guardian, unless it be 

actki"*^aiS!t*^' commenced within three years from the time when the guard- 

Burouoa. ^^^ g|jg^|j ^^^^^ ^^^^ discharged ; provided^ that if at the time 

of such discharge, the person entitled to bring such action 
shall be under any legal disability to sue, the action may be 
commenced at any time within three years after such dis- 
ability be removed. 



APPOINTHBNT AND DUTIES OF GUABDIAKB. 183 

§ 377. [Sec. 42.] Upon complaint made to the Probate 
Jadge by any guardian, or by the ward, or by any creditor, oompuint tn 
or by any other person interested in the estate, or by any bSBuSg,°ftc. *™" 

« . A* • A ^ At • •• • property of ward 

person having any prospective interest therein as heir, or 
otherwise, against any one suspected of having concealed, 
embezzled, or conveyed away any of the money, goods, or 
effects, or any instrument in writing belonging to the ward, 
the Judge may cite and examine such suspected person, and 
proceed with him as to such charge, in the same manner as 
is provided with respect to persons suspected of concealing 
or embezzling the effects of a deceased testator or intestate. 

Compare Sec. 117, ante. 

§ 378. [Sec. 43.] When any minor, or other person liable 
to be put under guardianship, according to the provisions ^^^^^^ ^ 
of this act, shall reside without this state, and shall have «>'• 
any estate therein, any friend of such person, or any one in- 
terested in his estate in expectancy, or otherwise, may apply 
to the Probate Judge of any county in which there may be 
any estate of such absent person, and after notice given to 
all persons interested, in such manner as the Judge shall or- 
der, and after a full hearing and examination, if it shall ap- 
pear to him proper, he may appoint a guardian for such 
absent person. 

§ 379. [Sec. 44.] E^ery guardian appointed under the 
provisions of the preceding section, shall have the same pow-^^JJ*^'^®^®^j^J 
ers, and perform the same duties, with respect to any estate JJ^'^J^^^J^^®** 
of the ward that shall be found within this state, and also 
with respect to the person of the ward, if he shall come to 
reside therein, as are prescribed with respect to any other 
guardian appointed under this act. 

§ 380. [Sec. 45.] Every such guardian shall give bond to 
the ward, in the manner, and with the like condition, as Bond of mch 
hereinbefore provided with respect to other guardians, ex-*"" "*" 
cepting that the provisions respecting the inventory, the 
disposal of the estate and effects, and the account to be ren- 
dered by the guardian, shall be confined to such estate and 
such effects as shall come to his hands in this state. 

§ 381. [Sec. 46.] The guardianship which shall be first 
lawfully granted, of any person residing without this state, gwp to SJ^ 



134 APPOINTMENT AND DUTIES OF GUABDIANS. 

all the estate of shall cxtend to all the estate of the ward within the same ; 
the Bute, ^l '''and shall exclude the jnrisdiction of the Probate Conrt of 
every other county. 

§ 382. [Sec. 47.] Every guardian shall be allowed the 

EzpensM and auiouut of his rcasouable expenses, incurred in the execution 

guardian. of his trust, and he shall also have such compensation for 

his services, as the court in which his accounts are settled* 

shall deem to be just and reasonable. 

§ 383. [Sec. 48.] The court in its discretion, whenever the 

MwetiwB one game shall appear necessary, may appoint more than one 

appointed. guardiau of any person subject to guardianship, who shall 

give bond and be governed and liable in all respects as is 

provided respecting a sole guardian. 

§ 384. [Sec. 49.] When an account is rendered by two or 
joint^gSi^^nsy more joint guardians, the Probate Judge may, in his discre- 
tion, allow the same upon the oath of any of them. 

§ 385. [Sec. 50.] All sales of real estate of minor heirs, 
saieg of real made for the benefit of said minor heirs, in accordance with 
heirs tJ bT'foJ the provisions of this act, shall be for part cash, and part 
*'***'' ***^' deferred payments, not to exceed three years, bearing date 
from date of sale, as in the discretion of the probate judge, 
may Ue most beneficial to said minor heirs. Guardians ma- 
king the sales aforesaid, shall demand and receive from the 
purchasers, bond and mortgage on the real estate so sold, 
with such additional security as the judge may deem neces- 
sary and sufiScient, to secure the faithful payment of the de- 
ferred payments and the interest thereon, (a.) 

[Act of March 13, 1858 To authorize Guardians of Minors, etc . to receive 
and remove from this State property to which the ward may be enti- 
tled. Statutes, 158, p. 59.] 

§386. [Sec. 1.] When the guardian and ward are both 
of^n^rerideSt^ nou-resideuts, and the ward is entitled to property in this 
mo^^^^^'*" s*^^® which may be removed to another state, without con- 
flict to any restriction or limitation thereupon, or impairing 
tbe right of the ward thereto, such property may be removed 
to the state of the residence of the ward, upon the applica- 
tion of the guardian to the judge of probate of the county in 

(a.) This section is an addition to the original act ; and was passed April 
30, 1853. Btat. 1853, p. . 



APPOINTMENT AND DUTIES OF GUARDIANS. 185 

which ^e estate of the ward, or the principal part thereof, 
may be, in the manner following : 

§ 387. [Sec. 2.] The guardian must produce a transcript the guardian 
from the records of a court of competent jurisdiction, certi- 
fied according to the laws of this state, showing that he has 
been appointed guardian of the ward, in the state in which 
he and the ward reside, and has qualified as such, according 
to the laws thereof, and gave bond with sureties, for the per- 
formance of his trust ; and must also give thirty days' notice 
to the resident executor, administrator, or guardian, if there 
be such, of the intended application ; thereupon, if good cause 
be not shown to the contrary, the probate judge shall make 
an order, granting such guardian leave to remove the prop- 
erty of his ward to the state or place of his residence, which 
shall be an authority to him, to sue for, and receive the 
same, in his own name, for the use and benefit of his ward. 

§ 388. [Sec. 3.] Such order shall be a discharge of the Eifoct of order, 
executor, administrator, guardian, or other person, in whose 
possession such property may be at the time the order is 
made. 

[Act of April 10, 1858. To provide for binding Minors as apprentices, clerks, 

etc. Statues, 1858, p. 134.] 

§389. [Sec. 1.] Every minor, male or female, with the Minors may 
consent of the persons or oflScers hereinafter mentioned, may, «mt. ^* **'*" 
of his or her own free will, bind himself or herself in writing, 
to serve as clefk, apprentice or servant, in any profession 
trade, or employment ; if a male, until the age of twenty-one 
years, and if a female, until the age of eighteen years, or for 
any shorter time ; and such binding shall be as valid aud ef- 
fectual as if such infant was of full age, at the time of making 
such engagement, 

§ 390. [Sec. 2*] Such consent shall be given : First, by the consent to be 
father of the infant. If he be dead or be not in a legal cap-**^*"* 
acity to give his consent, or if he shall have abandoned and 
neglected to provide for his family, and such fact be certified 
by a justice of the peace of the township or county, or sworn 
to by a credible witness, and such certificate or affidavit be 
endorsed on the indenture, then : Second, by the mother. If 
the mother be dead, or be not in a legal capacity to give 
such consent or refusal, then : Third, by the guardian of such 



186 



APPOINTXBNT AHD PUTIIB OF OUARDIAKS. 



In writing. 



Executors. 



Sapenrisors. 



Town officer. 



Age of minor. 



Money. 



Education. 



Infant, dulj appointed. If such infant have no parei^ li^iog, 
or none in a legal capacity to give consent, and there be no 
guardian, then : Fourth, by the supervisors of the county, or 
any two justices of the peace, or the judge of the probate 
court of the county. 

§ 891. [Sec. 3.] Such consent shall be signified in writing, 
by the person entitled to give the same, by certificate at the 
end of or endorsed upon the indentures, and not otherwise. 

§ 892. [Sec. 4.] The executors of any last will of a parent • 
who shall be directed in such will to bring up his or her 
child to some trade or calling, may bind such child to service 
as a clerk or apprentice in like manner as the father might 
have done if living. 

§ 893. [Sec. 5.J The supervisors of the county may bind 
out any child under the age above specified, who is or shall 
become chargeable to such county, to be clerks, apprentices, 
or servants, until they shall be of the ages above specified, 
which binding shall be as efi'ectual as if such child had bound 
himself with the consent of his father. 

§ 394. [Sec. 6.] In every town or city, the presiding offi- 
cer of the first council or legislative board thereof, if there 
be more than one, or any public officer or officers appointed 
to provide for the poor, may, in like manner, bind out any 
child, who, or whose parent or parents are, or shall become, 
chargeable to any such town or city. 

§ 895. [Sec. 7.] The age of every infant so bound shall be 
inserted in the indentures, and shall be taken to be the true 
age without further proof thereof ; and whenever any public 
officers are authorized to execute any indentures, or their 
consent is required to the validity of the same, it shall be 
their duty to inform themselves fully of the infantas age. 

§ 896. [Sec. 8.] Every sum of money paid or agreed for, 
with or in relation to the binding out of any clerk, appren- 
tice, or servant, shall be inserted in the indentures. 

§ 397. [Sec. 9.] The indentures shall also contain an 
agreement on the part of the person to whom such child 
shall be bound, that ho will cause such child to be instructed 
to read and write, and to be taught the general rul^ of 



APPOINTMENT AND DUTIES OF GUARDIANS. 



187 



BeooTdar. 



Allen minors. 



arithmetic, or in lieu thereof that he will send such child to 
school three months of each year of the period of indenture. 

§ 398. [Sec. 10.] The counterpart of any indentures ex- 
ecuted by any county or city, or town oflScers, shall be by 
them deposited in the oflSces, respectively, of the clerk of any 
such county, city, or town. 

§ 399. [Sec. 11.] Any white person capable of becoming 
a citizen of this state, coming from any other country, or 
state, or territory, may bind him or herself to service, if a 
minor, until his or her majority, or for any shorter term. Such 
contract, if made for the purpose of raising money to pay his 
or her passage, or for the payment of such passage, may be 
for the term of one year, although such term may extend be- 
yond the time when such person will be of full age, but it 
shall in no case be for a longer term. 

§ 400. [Sec. 12.] No contract made under the last section Aeknowiedg- 
shall bind the servant, unless duly acknowledged by the per™**" ' 
son making such contract, before some public magistrate or 
other officer authorized to administer oaths, and such ack- 
nowledgement certifying that the same was made freely on 
a private examination, be endorsed upon the contract. 



Indians. 



§ 401. [Sec. 13.] Nothing in this act shall concern, or in 
any manner affect or relate to Indians ; and every person 
having one-half or more of Indian blood shall bo deemed an 
Indian within the provisions of this act. 

§ 402. [Sec. 14.] Such indentures of apprenticeship may indentures 
be annulled and declared void by any district court, or a""**"®^- 
judge thereof, or by a county court, or a judge of such court, 
in the county where the master, or person to whom such ap- 
prentice is bound, shall reside, upon satisfactory proof of 
either of the following named causes : 

Ftr*^— Fraud in the contract of indenture. 

Second — When such contract is not made or executed in 
accordance with the provisions of this act. 

Third — For willful non-fulfillment, by such master, of the 
provisions of such indenture. 

Fourth — Cruelty or maltreatment of such apprentice, by 

the master, without just cause or provocation. 

And in such case an account may be taken and adjusted Aeconnt 

18 



First. 
Second. 

Third. 

Fourth. 



188 APPOINTMENT AND DUTIXa OF GHAIUXIANa. 

by such court or judge for any services rendered by the ap- 
prentice for the master under the articles of such indenture ; 
and, in case such indenture shall be annulled, judgment may 
be given for such sum as may be found equitably due the 
apprentice, on account of any services so performed by Mm 
for such master. 

§ 403. [Sec. 15.] For the purpose of annulling such con- 
»nnSu^.***° °' tract of apprenticeship, and recovering for services as afore- 
said, application shall be made, either in term^ime or vaca^ 
tion, by sueh apprentice, or on his behalf, but always in his 
name ; which application shall be m^de by petition, veri-fied 
by oath, stating the grounds on which such application is 
made, the amount claimed, if any, for such services, and pray- 
ing for liie relief demanded. Such petition shall be filed 
with the clerk of the court, who shall immediately issue a. 
citation thereon, duly certified, stating the grounds of such 
application as set forth in the petition, and the relief sought 
thereby. The citation shall also designate the time and 
place for the hearing of the application, and shall be direct- 
ed to such master, and shall require him to appear and an- 
swer such petition, at the time and place so designated, or 
in default thereof proof thereon will be heard in his absence* 
and such judgment as the right of the case will be rendered 
upon such petition ; such citation shall be served at least 
five days before the day appointed therein for the hearing 
as aforesaid, by such person or officer (in the same manner 
and with the like eflPect) as are authorized to serve summons 
in civil cases in courts of record. And on the day appointed 
for the hearing of the petition, such master may file his an- 
swer in writing, verified like the petition, setting forth any 
just cause why ihe prayer of the petitioner should not be 
granted; and upon such pleadings, the court or judge in 
term*tiime or vacation, shall hear the proofs of the parties^: 
who shall be styled plaintifiF and defendant, as in civil eases 
in the same manner, and shall determiiw the case in all re- 
spects as chancery cases are tried and decided under the 
civil practice act, and may aanul sueh indentures, and grant: 
any remedy or relief provided in this act, either with or 
without costs. But no adjournment or oontinuance of the 
case shall be granted, for any cause, for a longer period than 
ten days for any one time, and the decision, of such court or 
judge shall be final. 



AFPOINTMfiKT AND mj^TIES OP atJABDIAITS. 13d 

§ 404. [Sec. 16.1 Any person held to service under the Punishmentfor 

^ J J r flying from ser- 

provisions of this act, and unlawfully departing and absent- vice, 
ing himself or herself therefrom, upon the application of the 
master or mistress of such person, under oath, in writing, to 
the county judge of the county, that such person has absent- 
ed himself or herself without permission, the judge may issue 
a writ reciting the substance of the affidavit, and command- 
ing that such person be brought before him ; the writ may 
be served by any officer authorized to make arrests, and if> 
upon the person being brought before him, and upon an ex- 
amination of the matter, he is satisfied that such person is 
legally held to service, and has absented himself or herself 
without just cause, he shall order the person held to service 
to return to the care and custody of the person lawfully en- 
titled to such service or labor. If ^uch person persist in 
refusing to return, or returning, immediately absent himself 
or herself without leave, such judge may order such person 
held to service to be confined in the county jail, station 
house, or house of refuge, for such time as he may deem pro- 
per, not to exceed one month ; or, at the instance of the mas- 
ter or mistress, may annul the indentures. 

§ 405. [Sec. 17.] Any person who shall aid, or assist, or 
encourage any person to run away, or harbor or conceal any Accompuces. 
person held to labor, knowing the same to be absent without 
leave of the master or mistress, shall be deemed guilty of a 
misdemeanor, and on conviction thereof, shall be fined in 
any sum not exceeding one hundred dollars. 

[Act of Mirch 27, 1868. Conferring certain powers upon Guardians of 

Insane Persons. Statutes, 1858, p. 98.] 

§406. [Sec. 1.] Whenever any insane person shall have cuj^ for lands. 
any claim for lands derived from Spanish or Mexican au- 
thorities, and such claim shall have been rejected by the 
commissioners to ascertain and settle private land claims in 
the state of Oalifornia, the guardian of such insane person, 
appointed or to be appointed by the probate court or judge, 
shall have power to employ counsel, on behalf of such insane 
person, and on such terms as he may deem to the best inter- 
est of his ward, to prosecute such claim on appeal before the 
district court or the supreme court of the United States ; 
and for that purpose he may sell and convey such portion of 
the land so olaimed as may be necessary therefor, and to 



140 APPOINTMENT AND DUTIES OF GUARDIANS. 

meet any necessary expenses that may be incurred in the 
Counsel. prosccution of such claim. The deed of conveyance by the 
guardian shall be approved by the district judge of the dis- 
trict in which the land is situated, by his approval in writ- 
ing endorsed thereon, and shall be effectual to pass the es- 
tate of the said insane person in and to the land so conveyed ; 
provided^ that any contract so made with counsel for the pro- 
proyed, ^ *^ sccutiou of any such appeal, shall be first approved by the 
judge of the district court of the district in which the land 
lies, upon petition duly presented for that purpose by the 
guardian ; and promded, further, no sale of land, for the pur- 
pose aforesaid, shall take place, without a similar approval 
by the district court aforesaid, upon a like petition of the 
guardian. 

[Act of May 10, 1854. Fixing the a«:e of majority ; as amended April 2, 

1858. Statutes, 1858, p. 108.] 

§ 407. [Sec. 1.] Males shall be deemed of full and legal 

Legal age. age, whcu they shall be twenty-one years old, and females 

shall be deemed of full and legal age, when they shall be 

Effect of Mar- ^^g^*^®^ ycars old ; or at any age under eighteen, when with 

senli^fguar^n ^^^ couscnt of the parent, guardian, or other person under whose 

eta. care or government they may be, they shall have been lawJvUy 

married. 

The amendment of 1858 added that portion of the section in italics. 
Cases hearing upon the subject of the preceding Chapter, 

SELECTION AND APPOINTMENT OP GUARDIANS. 

In selecting a guardian for an infant, the wishes of the nearest relatives, or 
the declared wishes of the deceased parents, will be considered ; but the mat- 
ter is in the discretion of the Surrogate. Cozine v. Horn, 1 Bradford, 143. 

Great respect will be paid to the wishes of deceased parents, even where 
they have not been expressed in a definite or legal form ; still it is the duty 
of the court to see whether the conclusions of the parents are well founded, 
and such as command approval. If there is no reasonable objection to the 
gratification of their wishes, they will be controlling. Foster v. Mott, 3 Brad- 
ford R. 409. 

In determining upon the api)ointment of a guardian, the court will consider, 
not only what appears to be for the best interests of the infant, with reference 
to his or her temporary welfare, but the state of the affections^ attachments' 
training, education and morals. Ihid. 

As between an uncle and a stranger, contending for guardianship, other 
things being equal, the uncle is to be preferred. Morehouse v. Cooke, Hop- 
kins, 226. 

A convicted felon on being restored to civil life by pardon, is again entitled 
to the custody of his infant children, who had been placed under guardianship 
during his civU death. Matter of Deming v. Johm, 233, 483. 



APPOINTMENT AND DUTIES OF QUABDIANS. 141 

Other evidence than that furnished in the petition for the appointment of a 
guardian, concerning the property of the minorj may be required by the sur- 
rogate. He may aacertun by the examination of witnesses, the probable am- 
ount of the personal estate, and of the income of the realty, during the minor- 
ity of the infant. Bennett v. Byrne, 2 Barb. Ch. R. 216. 

A widow, being her late husband's executrix, her child's grandfather, will 
be appointed guardian, rather than he who has married the widow. Massnn- 
gale v. Tate, 4 Hayw. 30. 

ACCOUNTS OF OUABDIAMS, ETa 

A guardian is bound to keep separate accounts with each of his wards, and 
is chargeable with interest, if he neglect to invest their funds, though he may 
keep a reasonable surplus on hand for contingencies. Baker v. Richards^ 8 
Serg. and Rawles, 12. 

Transactions between a guardian and ward, during his minority, are alone 
the subjects of settlement in a guardianship account CroweWs Appeal, 2 
Watts, 205. 

Where one gave a negotiable note as guardian, it was held that he was lia- 
ble in his individual capacity after his guardianship ceased, and that he might 
indemnify himself out of the estate of his ward. Thacher v. Dimmore, 5 Mass. 
R. 300, and Foster v. Fuller, 6 Mass. R. 58. 

A guardian using the money of his ward, or neglecting to invest it, is 
chargeable with interest A balance of the money in the guardian's hands 
should be struck every six months, and simple interest charged thereon, allow- 
ing a reasonable sum to remain in his hands to meet expenses. Commissions 
are not to be deducted ft'om the foot of the account ; butft-om time to time, as 
the services were rendered. Lay v. Ba/mes, 4 Serg. and Rawles, 112. 

If the guardian neglects to put the ward's money at interest, but suffers it 
to be idle an unreasonable time, or mixes it with his own, the court will charge 
him with interest, and in cases of gross delinquency with compound interest. 
White V. Parker, 8 Barb. S. C. R. 48 and cases there cited. 

As to proof of opportunity, or ability of guardian safely to invest ward's 
money, and what will be considered a reasonable time to do so ; and the degree 
of diligence to which guardian is bound, see opinion in same case. 

A guardian cannot be charged in his account with his ward, for a contested 
debt, claimed to have been due to the ward from him, at the time of his ap- 
pointment. The surrogate has no jurisdiction to try such a controverted claim. 
Bait V. Rait, 1 Bradf. R. 345. 

In allowing the guardian for counsel fees disbursed for the benefit of his 
ward, he will be credited only such sum as was a reasonable charge for the 
services rendered. Ibid, 

When a guardian charges his ward with counsel fees paid by him, he must 
show that the services rendered by the counsel were necessary for the inter- 
est of the ward. McOa/ry v. Lamb, 3 Texas R. 342. 

The verdict of a jury on a question submitted to them, respecting the cor- 
rectness of accounts, rendered by a guardian against his ward, is entitled to 
great weight, and should not be set aside, unless clearly and palpably against 
evidence. Ihid. 

QUARDUNS FOR PERSONS NON COBfPOS MENTIS. 

Letters of guardianship of a lunatic, issued by a probate court, cannot be 
questioned in a collateral proceeding. Wa/rren etalY. Wilson, 4 Cal. R. 310, 

Upon the application for the appointment of a guardian to one represented 
as non compos mentis, the court are not confined to a trial by the inspection 



142 APPonmiBNT and dutibs or oaARDUira. 

aad examinatioii of such person, bat may admit other evidence, Brigham v. 
Sriffkam, 12 Mass. R. 506. 

The decree of a probate coart appointing a goardian, is at letai prima facie 
evidence of the disability of the ward. Whdie t. Palmer y 4 Mass. R. 147. 

A person under guardianship as non compos r/ventis, if his reason be Te- 
stored, is competent to make a will, aUhough the letters of guardianship are 
unrevoked, . Stone ▼. Damon, 12 Mass. R. 488. 

Where a person non compos m^riiis, under guardianship, had in Itk poBsei- 
sion a promissory note, payable to himself, and received payment of it from 
^e promisor, who had knowledge of the goardiaoship, it was held that such 
payment was of ao effect, and the letter of guaidianship was held to be con- 
clusive evidence thiit at the time of the payment the ward was not of sound 
mind. Leonard v. Leonard^ 14 Pickering, 280. 

Yet ii seems, ihAt the ward if of snfficleat capacity in fad, may malce a 
will, this being an act which the guardian cajuiot do for l^m. Jbid, Opinioa 
of Court, p. 284. 

A guardian's appointment by the proper officer, tJiough without regular no- 
tice, is voidable, not void. Cleveland v. Sopkins, 1 Aik. 394. 

Under the act of 1848 (Hart. Dig. p. 478), the 'appointment of a guardiiQ 
by the chief Justice of any other county than that of the ainor's resldenoe, is 
absolutely void. Munson v. Newson, 9 Tex. R. 109. 

The right to the guardiauAhip of an infant cannot be determined apon habeas 
toarpus. People v. Mercemy S Paige, 47. 

The court will not order money of the infant to be paid to the father, or 
guardian by nature. He must procure an appointment and give aecuri^. 
Oenet v TaUmadge, 1 Johns. Ch* R. 3. 

A father, or any one else, who takes possession of the personal property of 
An infant, receives the rents and profits of his real estate, may, in equity be 
considered, and compelled to account as goardian* Van Spps v. Van Deuten, 
4 Paige, 64. 

A guardian appointed out of the State, is not entitled to receive from an ad- 
ministrator here, the legacy or portion of his infant ward. The guardian most 
be appointed here, and give competent security, to be ai^roved by the court, 
before payment of the infant's money to him will be ordered. MorreU ▼• 
Dickey, 1 Johns. Ch. R. 153. 

The relation which a guardian maintains to his ward, is not that of a con- 
tract debtor to his creditor. Where he has received the money of his ward, 
the law will doubtless raise an implied promise to pay it over when the latter 
arrives at age, if he chooses to bring an action of assumpsit^ But the guard- 
ian cannot by any act of his, change his duties and liabilities from thoae of a 
trustee to those of a mere corUrad dMor, Seaman v Duryea, 10 Barb. S. 
0. R. 624. 

A guardian is not liable for necessaries furnished to hiB ward without his 
consent, CtiU v. Ward, 4 Watts and Serg. 118, 



CHAPTER XVm. 



WILIS* (tt.) 

[Actof April 10, 1850. Concerning Wills. Statutes, 1850, p. 177. Compiled 

Laws, p. Ii40.] 

§ 408. [Sec. 1.] Every person over the age of eighteen p«t«om over 
years, of sound mind, may, by last will, dispose of all his es-dispowofpropttr. 
tate, real and personal, and such estate not disposed of by 
will, shall descend as the estate of an intestate, being charge' 
able in both cases with the payment of all the testator's 
debts. 

§ 409. [Sec. 2.] Any marriied woman may dispose of all Harried woiaen 
her estate by will, and may alter or revoke the will in lil^e ™*^^^<Jj;pj>»«^.j^' 
manner as a person under no disability might do : provided^ 
that no such will, alteration, or revocation, shall be of any 
validity without the consent of the husband in writing, an- 
nexed to such will, alteration, or revocation, and attested and 
subscribed, and to be proven and recorded in like manner as 
a will is required to be witnessed, proven and recorded, un- 
less the wife has power to make a will, conferred by marri- 
age contract or authority in writing, executed by her hus- 
band before marriage^ 

§410. [Sec. 8.] No will, except such nuncupative wills as^ wnis- except 

c^irtftiii to b© in, 

are mentioned in this act, shall be valid, unless it be in wri- writing, signed, 

_. .,. ***^ attested. 

ting, and signed by the testator or some person m his pre* 
senoe, and by his express direction, and attested by two or 
more competent witnesses subscribing- their names to tilie- 
will, in the presence of the testator. 

§ 411. [Sec. 4.] If the subscribing witnesses to a will a^e ^^^omj)et^ency of 
competent at the time of attesting its execution, their subse-"«*»- 



(a.) See cases noted at the end of the chapter. Also cases noted tmU^ pp. 
33 and 34. 



144 WILLS. 

quent incompetency, from whatever cause it may arise, shall 
not prevent the probate and allowance of the will, if it be 
otherwise satisfactorily proved. 

, § 412. [Sec. 5.] All beneficial devises, legacies, and gifts 
scribing witness- whatcvcr, madc or given in any will to a subscribing wit- 
ness thereto, shall be void, unless there are two other com- 
petent subscribing witnesses to the same, but a mere charge 
creditorj com- ou the cstatc of the testator for the payment of debts, shall 

patent witneaa . ^ *i * 

not prevent his creditors from being competent witnessess 
to his will. 

Witness who u § ^^^' [S^c. 6.] But if such witucss, to whom any benefi- 
who*wourdb?en-cial dcvisc, legacy, or gift, may have been made or given, 
tes\^ti?'B''*'estete^o^ld have been entitled to any share of the estate of the 
to°8hIre*to am^*^6stator, in case the will is not established, then so much of 
ount of devise, the sharc as would have descended or been distributed to 
such witness, as will not exceed the devise or bequest made 
to him in the will, shall be saved to him, and he may recover 
the same of the devisees or legatees named in the will, in pro- 
portion to and out of the parts devised or bequeathed to 
them. , 

§ 414. [Sec. 7.] No nuncupative will shall be good, when 
^^uncupa re ^^ estatc bequeathed exceeds the value of five hundred dol- 
lars, nor unless the same be proved by two witnesses, who 
were present at the making thereof, nor unless it be proved 
that the testator, at the time of pronouncing the same, did 
bid some one present to bear witness that such was his will, 
or to that effect, nor unless such nuncupative will was made 
at the time of the last sickness, and at the dwelling-house of 
the deceased, or where he or bhe had been residing for the 
space of ten days or more, except where such person was 
taken sick from home, and died before his or her return. 
Nothing contained herein shall prevent any soldier being in 
actual service, nor mariner being on shipboard, from dispos- 
ing of his wages and other personal estate by a nuncupative 
will. 

A nuncupatiye wiU cannot be sustained in any other cases than those pre^ 
scribed in the statute. Jones v. Norton, 10 Texas R. 120. 

Mere declarations of a person in good health, as to his wishes respecting the 
disposition of his property in case of his death, which he anticipated might 
occur suddenly — ^where the death did so occur soon afterwards —are not suffi- 
cient to establish a nuncupative wiU. Ibid. 



WILLS. 145 

§ 415. [Sec- 8.] No proof shall be received of any nuncu- Proof of nooeu- 
pative will, unless it be offered within six months after '^"^^"^ 
speaking the testamentary words, nor unless the words or 
the substance thereof were reduced to writing within thirty 
days after they were spoken. 

§ 416. [Sec. 9.] No probate of any nuncupative will shall 
be granted for fourteen days after the death of the testator, cupat»v« wiu«. 
nor shall any nuncupative will be at any time proved, unless 
the testamentary words, or the substance thereof, be first 
committed to writing, and process be issued to call in the 
widow, or other person or persons interested, to contest the 
probate of such will, if they think proper. 

§ 417. [Sec. 10.] No will in writing shall be revoked, un- 
less by burning, tearing, cancelling, or obliterating the same, ««▼«*«<» ^ 
with the intention of revoking it by the testator, or by some 
person in his presence, or by his direction, or by some other 
will or codicil in writing, executed as prescribed by this 
act, or by some other writing, signed, attested, and subscrib- i»pii^*f »#» 
ed, in the manner provided by this act, for the execution of 
% will ; but nothing contained in this section shall prevent 
the revocation implied by law, from subsequent changes in 
the condition or circumstances of the testator. 

§ 418. [Sec. 11.] If after the making of any will, the tes- 
tator shall duly make and execute a second will, the destruc- ^^i"^"^^^;* 
tion, cancelling, or revocation of such second will, shall not^Jentwui*''^"' 
revive the first will, unless it appears by the terms of such 
revocation that it was the Intention to revive and give effect 
to the first will, or unless, after such destruction, cancejllii^^ 
or r^vocatioa, the first will shall be duly repnbUpbed. 

§ 419. [Sec. 12.J If after the making of any will, ttie tes- 
tator shall marry, and the wife shall be living at the death of Effeeuor mar. 
the testator, such will shall be deemed revoked, unless pro- ?n Ss*^ "*" 
vision shall have beeiu made for her by marriage contract, 
or unless she shall be provided for in the will, or in such 
way mentioned therein, as to show an intention not to make 
such provision, and no other evidence to rebut the presump- 
tion of revocation, shall be receivedii 

§ 420. [Sec. 13.] A will, executed by an unmarried wo- Eifeet or mw. 
man, shall be deemed revoked, on her subsequent marriajje, ^«'i^"** 

and MbM not be revived by the death pf her httsband. 

19 



146 WILLS. 

§ 421. [Sec. 14.] A bond, covenant, or agreement, made 
coTCTMint toby a testator, to convey any property devised or bequeathed 
de?LS l^t^\l in any will previously made, shall not be deemed a revoca- 
tion of such previous devise or bequest ; but such property 
shall pass by the devise or bequest, subject to the same rem- 
edies on such bond, covenant, or agreement, for the specific 
performance, or otherwise, against the devisees or legatees, 
as might be had by law against the heirs of the testator., if 
the same had descended to them. 

„ , § 422. [Sec. 15.1 A charge or incumbrance upon any es- 

reTocationofwiutate, for the purposo of securing the payment of money, or 
the performance of any covenant or agreement, shall not be 
deemed a revocation of any will relating to the same estate 
which was previously executed, but the devise and legacies 
therein contained, shall pass, subject to such charge or in- 
cumbrance. 

§ 423. [Sec. 16.] When any child shall have been born, 
afS"m7km?^o°^^*®^ ^^® making of its parent's will, and no provision shall 
^"* be made for him or her therein, such child shall have the 

same share in the estate of the testator as if the testator had 
died intestate ; and the share of such child shall be assigned 
as provided by law, in case of intestate estates, unless it 
shall be apparent from the will, that it was the intention of 
the testator that no provision should be made for such child. 

§ 424. [Sec. 17.] When any testator shall omit to provide 

■u?of chiid?en of ^^ ^^^ ^^ ^^^ ^^^^ ^^^ ^^J ^^ ^^^ ^^ ^^^ childrcu, or for the 
iSid for by^Si ^ssue of any deceased child, unless it shall appear that such 
^^- omission was intentional, such child, or the issue of such 

child, shall have the same share in the estate of the testator 
as if he or she had died intestate, to be assigned as provid- 
ed in the preceding section. 

Whether it must appear from the wUl itself ** that such omission was inten- 
tional,'' or may be shown by proof cUiunde. — Qtiare. 

The validity of a will must be tested by the proof of its original execution, 
and by its contents, without the aid of parol evidence as to the intention of the 
testator in respect to its subsequent ratification. JEx parte, Lindsay j 2 Brad- 
ford's R. 204. 

But where a will is contested, as having been procured by undue influence, 
evidence of the conformity of its provisions with the testator's tnteniionSf and 
declarations indicated to disinterested parties, is admissable. Wightman v. 
Stoddard, 3 Bradf. R. 393. 

Facts and circumstances, as they existed at the time the will was made, may 



WILLS. 14T 

be resorted to to aid in its construction, and in ascertaining the intention of 
the testator. Smith v. Bell, 6 Peter's R. 68. 11 Mass, R. 628. 8 Mass, R. 3, 
And see 1 Jarman on Wills, 362, and Wigram on Extrinsic Evidence, pp. 7 
and 8. 

§ 425. [Sec. 18.] When any share of the estate of a testa- ^^^^'^^of^^er- 
tor shall be assigned to a child born after the making of a ^^^^ ff^wf 
will, or to a child, or the issue of a child, omitted in the 
will, as hereinbefore mentioned, the same shall be first taken 
from the estate not disposed of by the will, if any ; if that 
shall not be sufficient, so much as shall be necessary shall be 
taken from the devisees or legatees, in proportion to the 
value they may respectively receive under the will, unless 
the obvious intention of the testator in relation to some 
specific devise or bequest, or other provision in the will, 
would thereby be defeated ; in such case, such specific devise, 
legacy, or provision, may be exempted from such apportion- 
ment, and a difi'erent apportionment, consistent with the in- 
tention of the testator, may be adopted. 

§ 426. [Sec. 19.] If such child or children, or their de- 
scendants, so unprovided for, shall have had an equal pro- dun^g^itfeS of 
portion of the testator's estate bestowed on them in the *®*'**^'*''- 
testator's lifetime, by way of advancement, they shall take 
nothing in virtue of the provisions of the three preceding 
sections. 

§ 427. [Sec. 20.] When any estate shall be devised to any ue^th ^f c^e- 
child, or other relation of the testator, and the devisee shall JloT'^'^i^^] 
die before the testator, leaving lineal descendants, such de-totor!i^vtogiin- 
scendants shall take the estate so given by the will, in the '*^ '^^''*''*^*''*'- 
same manner as the devisee would have done, if he would 
have survived the testator. 

§428. [Sec. 21.] Every devise of land in any will shall Deviaesofiand 
be construed to convey all the estate of the devisor therein, '■^**^'^*'"*™*^' 
which he could lawfully devise, unless it shall clearly ap- 
pear by the will that he intended to convey a less estate. 



§ 429. [Sec. 22. J Any estate, right, or interest in lands 
acquired by the testator, after the making of his or her will, property to pass 
shall pass thereby, and in like manner as if it passed at the ' 



time of making the will, if such shall manifestly appear by 
the will to have been the intention of the testator. 



148 WILLS. 

Will made out § 430. [Sec. 23.] No will made in any other of the United 
tothi.act'.'* *° States, or in any foreign country or state, shall be deemed 
valid as a will in this state, unless executed according to the 
provisions of this act. 

wmiBciudM §431. [Sec. 24.] The term "will/* as used in this act, 
shall be so construed as to include all codicils as well as 
wills. 

Cases hsaring upon the subject of the preceding Chapter, 

The fact that a wiU was began on one day, and finished several days after- 
wards, is, it seemsj no ground for invalidating the will, under the Mezicaa 
law. Castro v. Casiro, 6 Cal. 158. 

The strictness of the rules of the civil law requiring five, or least three, wit- 
nesses to a win, was relaxed expressly in favor of remote districts. And by 
the customs of California, under the Mexican rule, which have the force of law. 
two witnesses were sufficient to a will. Ibid. 

A will is regarded by the courts of England and the United States as a con- 
veyaneet and t'^.kes efflect as a deed, on proof of its execution, unless there be 
some express statute requirmg it to be probated. lb. Opinion, at p. 161. 

The will of a testator dying before the organization of the State Govern- 
ment, did not require to be probated, under the then existing laws. Grimes* 
Estate V. Norris, 6 Cal. 621. 

Our statute of wills not only fails to require the probate of wills executed 
before its passage, but it must from its terms be concluded that the Legislature 
actually intended to exclude such wills from the [operation of the statute al- 
together, leaving their validity to depend upon the laws under which they 
were made, and not disturbing rights which had grown up under the former 
system. Ibid, 

A will only becomes executed upon the death of the testator, and therefore 
this construction does not affect wills made befbre the passage of the statutef 
iahere the testator did not die tin after its passcLge. Ibid, 

Property in this State, acquired by the husband after marriage, but before 
the passage of the Act of April 17, 1650, is common property under the Mex- 
ican law, as that acquired subsequemtly is by the statute, and cannot be dis- 
posed of by will. Buchanan's Estate^ 8 Cal. R. 507. 

A posthumous child, for whom no provision is made in the will of the father, 
is entitled (there being no other children) to one half of the separate and com- 
mon property, where no express intention of the testator to the contrary ap- 
pears. Ibid. 

A revocatory clause in a will, ofaXt former wills , is not always Imperative. 
Its efilbct depends upon the iotention to be gathered from ail the instrwments. 
Van Wert v. Benedict, 1 Bradf. R. Ill 

In determining the construction of a will, the testator is presumed to have 
used words in their primary and ordinary sense. The word " children " in- 
cludes only immediate, legitimate descendants, and not step-children, LaW' 
rence v. Hubbard^ 1 Bradf. R. 252. 

Wills may be conditional^ that is dependent for their testamentary opera- 
tion upon a specified contingency. But the condition must appear upon the 
face of the wiU, and go to the root of the entire instrument, in order to affect 
the question of probate. J^%-parte Lindsay^ 2 Bradf. R. 204. 



CHAPTER XIX. 



DISCONNECTED STATUTORY PROVISIONS RELATING TO THE ES- 
TATES OF DECEASED PERSONS, ETC. 

§ 432. The Revenue Act of April 29, 1857, provides that Taxation of pro- 
the property of widows, or orphan children, to the amount MdJrphaM.**'" 
of $1,000, shall not be subject to taxation. 

Statutes, 1857, p. 326, sec. 2, subdiyision 7. 

§ 433. The undivided property of deceased persons may undivided pro- 
be listed to the heirs, guardians, executors, or administra-JS^M.*^*^*^ 
tors, as the case may be, and a payment of taxes made by 
either, shall bind all the parties in interest for their equal 
proportions. 

Statutes, 1857, p. 329, last paragraph of section 6. 

§434. Minor children, whose interest in lands has been Redemption by 
sold under a tax sale, may redeem within one year after ™i5for ?axir^ 
coming of age. 

statutes, 1857, p. 334, sec. 23. 

§ 435. It is hereby made the duty of every Probate Court, p^^,^^ ^ 
and Probate Judge, from time to time, to direct each and*? ^^'^^^p^y^'"* 

OX UkXOH* 

every executor and administrator (which directions may be 
either specially given in each case or by a general order) 
to pay out of the funds of the estate, all taxes that have at- 
tached to, or accrued, against such estate, after the passage 
of this Act, and no order or decree for the distribution of no decree of 

x/» jj^x^ xi-"L» J* distribution to be 

any property of any decedent among the heirs or devisees made, unta taxes 
shall be made, until all taxes that have attached to, or ac-^^ * 
crued against the estate shall have been paid. 

Statutes, 1857, p. 335, sec. 28. 

§ 436. No estate shall be allowed to the husband, as ten- Husband and 
ant by courtesy, upon the decease of his wife, nor any estate"^ * 
in dower be allowed to the wife upon the decease of her 
husband. 

Act of April 17, 1850, definiug the rights of husband and wife, sec. 10. 

§ 437. Upon the dissolution of the community by the 
death of either husband or wife, one half of the common 



150 RELATING TO ESTATES OF DECEASED PERSONS. 

Diiposition of property shall go to the survivor, and the other half to the 

community pro- \ -i n ■% t -i-iii •« 

perty upon death descendants of the deceased husband or wife, subject to the 

of husbftnd or ^ 

wife. payment of the debts of the deceased. If there be no de- 

scendants of the deceased husband or wife, the whole shall 
go to the survivor, subject to such payment. 

Ibid, sec 11. 

§ 438. A minor capable of contracting matrimony, may 
Marriage con- cutcr iuto a marriage contract, and the same shall be as valid 
as if he was of full age ; provided, it be assented to in writ- 
ing, by the person or persons whose consent is necessary to 
his marriage. 

Ibid, sec. 20. 

§ 439. The parties to any marriage contract, shall enter 
contr^ct'to'aTt?^ iuto uo agreement, the object of which shall be to alter the 
6clnt,%tc.** ^ legal order of descent, either with respect to themselves, in 
what concerns the inheritance of their children or posterity, 
or with respect to their children between themselves, nor 
derogate from the rights given by law to the husband, as to 
the head of the family, or to the surviving husband or wife, 
as the guardian of their children. 

Ibid, sec. 22. 

§ 440. It shall be lawful for any married woman, by her- 
Married woman sclf Or iu hcr uamc. Or iu thc name of any third person, with 
"*Lr"hu8bandt his asscut as her trustee, to cause to be insured for her sole 
use, the life of her husband, for any definite period, or for 
the term of his natural life ; and in case of her surviving her 
husband, the sum or net amount of the insurance becoming 
due and payable by the terms of the insurance, shall be pay- 
able to her, to and for her own use, free from the claim of 
the representatives of her husband or his creditors ; but such 
exemption shall not apply where the amount of the premium 
annually paid, shall exceed three hundred dollars. 

Statutes, 1854, p. 44. 

§ 441. In case of the death of the wife before the decease 
m^bemXJay^of hcr husbaud, the amount of the insurance may be made 
aWe to her chii- pg^yg^jjig ^q j^^j. children, and shall be received by them ; or 

if under age, by their legal guardian for their use. 

Statutes, 1864, p. 44. 



INDEX. 



iisr r> EX. 



ACCEPT ANCETof executorship 6 

ACCOUNT, by special administrator, . . 94 
by administrator, when a will is found 98 
by administrator or executor, on resig- 
nation... 100 

by surviving partner 19^ 

what executor or administrator charge- 
able with in his accounts. 

216 to 220 

what to be credited with 217 tp 221 

and exhibit, to be rendered at third 
term after appointment . . .. 

222 to 227 

to be rendered in one year 228 

may be compelled by attachment 228 

to be rendered when letters revoked . 229 

letters revoked, if not rendered 230 

vouchers fo be rendered and proofs . . 232 
what vouchers may be dispensed with 232 

notice of settlement of 233 

exceptions to, may be filed 234 

guardian ad litem appointed 23^ 

auditor may be appointed 236 

settlement of, when conclusive 237 

posting of notice to be proved 238 

order of payment of debts 239 

preference to a mortgage 240 

payment of proportion, dividend. .241, 243 

funeral expenses and sickness 242 

order of court for payment , 243 

provision for disputed and contingent 

claims 244 

when executor or administrator person- 
ally liable for debts. . 215,245 
if claim falls due after account is set- 
tled z 246 

^ymeot of legacies, etc 247 

extensloa of time for settlement of es- 
tate.. 247 

final account and settlement 248 

regulations aflSeeting same 249 

by public administrator, 302 E to 303, 312 

3r guardian 34,3 370, 380 
lowed on oath of one guardian 384 



ACTION, on bond 75 

for injury from neglecting inventory. 113 

for property embezzled 11^ 

for neglect, etc. on sale of property. . 

188, 189 
by subsequent executor or administra- 
tor 199 

against executors and administrators, 

when - 195, 197, 199 

by executors and administrators^ .... 

93, 195, 196, 198, 199, 257, 308 
against surviving partner of deceased, 198 
on bond of executor or former admin- 
istrator 199 

who to be joined 2M 

for recovery of property unlawfully 

conveyed by decedent, 202, 293 
against administrator, or executor, or 

bondsmen, limited . . .^ . .^ 237 

on bond of indemnity of heir « . 257 

on bond it'here notice to creditors has 

not been given • .^^^^ . . . . 2^ 
on bond of guardian 375 

ADMINISTRATION, when granted. ... 59 

where granted • 2, 3 

to whom granted 52 to 57, 64, 66 

ADMINISTRATOR 

who entitled to serve as 

52 to 57, 64, 66, 76 B 

partner not entitled 52 

may join another person 66 

may substitute another — ^husband or 

wife 62 

to give bond before letters 73 to 76 

separate bonds, where more than one. 74 

sureties of, justification, etc 76 to 76 B 

to have letters of administration 71 

to take oath 72 

letters of, may be revoked 81, 86 

powers of, mav be suspended 82 

may be restrained in certain cases ... 4(1 
to receive property, etc., from any 

special administrator 93 



154 



INDEX. 



ADMINISTRATOR— (Continued.) 
to continae suits brought by special 

administrator 93 

if administrator die, or letters be re- 
yoked, special administra- 
tor may be appointed .... 95 
death, insanity, or other incapacity of 

96, 96, 97 
letters of, revoked if a will be fonnd . . 98 
on revocation, to render an account 98 

resignation of 100 

acts of, valid aTter removal 101 

to make inventory and appraisement. 105 

to make affidavit to inventory Ill 

penalty for not returning inventory. . 112 
to have possession of property and 

keep in repair, etc 114 

may sell personal and real estate .... 115 

to sue for property embezzled 116 

may examine under oath an^ person 
suspected of taking or keeping, etc., 

' properW^ of deceamd 117 to 119 

to pay allowance to family in prefer- 

ereace 123 

to publish notice to creditors 128 

letters of, may be revoked if same be 

i^eglected^ 146 

pfrm and requirements of such notice. 

128,129 
to file proof of publication of same . . . 129 
to approve or reject claims presented, 

130, 131, 132, 134 to 141 

eifect of judment against 140, 144 

v^j. agree to r.qfer a claim 142 

Qlaim of probata judge to be presented 

to 131 A 

Slain^ of, tQ l^e pr?^i)ted to judge. ... 145 
,tial) rettif a f^ stateijient of claims 147 

sale of periebftble property, by 150 

9^6 of personal. 148 to 154 

sale of wal 154 to 176 

ip retnrA acQoanto of sales on oath ... 192 
tp 8^11 cQqtract fo|r purchase of lands, 

182 to 185 
^.P^7 Qi^ases of Bi^le l^om proceeds 187 
liftbillljy of. fypm fraud and misconduct 

in sales 188, 189 

l|mitatioo of action against 190, 191 

cannot pQveliase property of estate. . • 193 
i^ take possession of real and person- 
al estate and collect debts 194 

when may be sued 195, 197, 199 

when may bring suits 195, 196, 199 

ips^y havQ actioaa of waste, etc 196 

^ay sue surviving partner of deceased 198 
\^)io to be joined in suits. ....... 199, 200 

may sii^ for property unlawfully con- 
veyed by deceased . . . 202, 203 
t9 sell such property to pay debts. . . . 204 

iqay con)promise 4fibts 201 

^ make conveyance under decree. . . . 209 
pf person, entitled to conveyance, to 

apply for decree. 214 

whep liable on special promise 215 

«^)iat chargeable with .......... 2X6, 217 

1^ account.fpr profit 217 

when not hieljl for loss 217. 218 



allowed expenses and fees 219 

commissions of 221 

extra compensation of 221 

cannot purchase claims 220 

cannot make personal profit on claims 220 
to render exhibit under oath at third 

term 222 

character of such exhibit 222 

may be compelled by citation 223, 225 

may be examined as to such exhibit. . 226 

may be attached or removed 227 

shall render an account at the end of 

the year 228 

may be compelled by attachment 228 

to be cited l^fore attachment • 228 

may be compelle . to account after re- 
moval 229 

when letters to be revoked for failing 

to render account 230 

to produce vouchers with the account 231 

when vouchers excused 232 

five hundred dollars allowed on oath . . 232 
name of, to be in notice of settlement 233 
limit of action against, as to account 237 
when liable on bond and execution to 

each creditor 245. 

liability of, when notice to creditor 

has not been given 246 

may have extension of time to settle. 247 

when to pray for final settlement 248 

proceedings on final settlement of 249 

proceedings on final di8char|;e of. 279, 388 
entitled to notice of application by 

heir for siiare of estate .... 251 

may resist such application 252 

applicant to give bond to 253 

to pay over to applicant on order. ... 254 
may require payment on thebpnd... 257 
may apply for decree of distribution. 

258,260 

when may sell for distribution ... 268 

final discharge of. 279, 388 

subsequent {^ministration 126, 280 

may he suspended for waste, embezzle- 
ment, or mismanagement. 281 

to have notice, citation 283 

letters may be revoked* 283 

allegations against, in writing 284 

bow service of citation may fie made 
if concealed or absconded, 

or out of the county -285 

may be attache4 to answer ^Si) 

ADMINISTRATOR WITH THE WILL 

ANNEXED 

to be cited on contest of probate, &c . 31 
how afl'ected by revocation of, &c, ... 84 
appointed, where executor named is 

incompetent 42 

appointed, where executor named is 

discharged 45 

appointed, where executor named is 

under age 46 

authority of • 48 

to give bond before letters. ...... 73 to 76 

form of letters , frl 

oath to be taken by ; . . . T8 



asPBB TO SKCnOKS.] 



IHDBX. 



155 



letters of, may bo revo^Q^ 81, 86 

powers of, may be suspendedi. ....... 82 

may be restramed, &c 40 

f^)pomtcd on death, insanity, or other 

incapacity of executprs. . . 97 
^here will is found after administra- 
tion, duties and rinrbts of.. 99 
See "Adlministratpr."^ 

ADMINISTRATOR, PFBLIC, see "Pub-. 
Uc Administrator." 

ADMINISTRATOR, SPECIAL, sqo 

"Special Admiiiistratior." 

ADVANCEMENTS to heirs 

273, 319 to 323, 426 

AGE OF MAJORITY for males and 

females 407 

of apprentices. 389 

AGENT on partition 270, 274 

to take estate for absentee 274 

to give bond ........ ...... 275 

to receive compensation 275 

to retain property one year 276 

to sell the same under order of the 

court 276 

to pay into tlie treasury and take 

receipts ....!. 276 

liable on his bond 517.7 

APPRAISERS, tlieir appoiotroenl^ com- 
pensation, &c 106 

for property in another county 106 

mode of making appraisemeiit, by . 1Q7, IXX 

APPRAISEMENT, see "Inicentory." 

APPEAL from ajp^ointmcnt of. special 

admiiustrator not aillowed. 90 

from decree for coQveyance 2fid 

fcom allowance of account when con- 
clusive.. ....... 237 

what orders and decrees may be ap- 
pealed from 297 

mode of taking the appea} 298 

notice and undertaking. 298 

statement on appeal 299 

APPRENTICE, minors, may be bonnd 

out 389 

who to give consent 390, 392 

such consent to be in writing 391 

supervisors may bind out child 393 

town officers may bind out child 394 

age of infant to be ascertained and in- 
serted in the indentures. . 395 

wages also to be inserted. 396 

tp be educated 397 

what indentures to be filed 398 

ali^n minors, may become 399 

contract of, to be acknowledged 400 

Indians not included 401 

when indentures annulled. 402 

proceedings to annul '. 403 



^fleeing service may be proceeded 

against. 404 

accomplices punished 405 

ATTACHMENT, for not returning ia- 

ventory 113 

and commitment for refusing to anr 
swer under order of court. 

11$, 119, 310 
for not rteturning aocoui^t of sales un- 
der oatk. . . 192 

against surviving partner for failure 

to account 198 

for not Eendering an exhibit. . • ^7 

for not rendering an account ^^^8 

U> answer, on complaint against ex- 
ecutor or administrator... 286 

ATTOENEy forminoxis and ab^nt heirs 

on probate of wilL 18 

for minors' devisees, &c.j on contest of 

will ^ 

ATTORNEY GENERAL to file infor- 
mation of forfeited inher- 
itance of foreigners 326 

Sec '^Escheated B8t9>te8.'' 

BOND by executor or adi^ini^trator, on 

receiving letters 73 to 77 

form, penalty, conditio^ of and par- 
ties ....7^,76 

to be given by each executor ov ad*- 

ministrator 7,4 

suits on such bond 75 

sureties^ justification, &c . . , 76, 76 A, 76 B 

on salf of real estate. 73, 76, 366 

^pplic(^tipn, on insufficiency of, re- 
moval from state, insolven- 
cy, or other cause 73 

proceedings on same .7 8 to 83 

ebplication of a surety to be released. 

84 to 87 

for rents and profits. 73 

effect of not giving 76, B 88 

of administrator, with will annexed in 

certaincases W 

liability on, for failing to return In- 
ventory IW 

liability on, for neglect, &c., on sale 

of property 1^% 

of indemity to executor or administra- 
tor, by purchaser of con- 
tract.. 183,184 

salt may be brought on, by subsequenj; 

administrator, t^. ..*... . 1^9 

of special administrator. . . ! 91, 282 

limitation of suit on bond oq matters 

of account 837. 

liable to creditor for debt allowed, apd. 

ordered paid 24ft 

l|able fpr debts not presented, when 
notice to cre^itprs has not. 

been given 24$ 

of agent appointed on paiptition and 

diptributipft. . ." . . . V . '. .27.5, 27^ 
tot be given by heir on application for 

shjeijre.tobe given him.. ••• ^.% 



1 



156 



IKDEX. 



[thus avmni 



B OND— (Continued.) 

how same may be proceeded on 257 

on appeal 298 

justification, of sureties 76 A 

citation to witnesses 76 A 

additional security may be required . 76 A 
administration granted to next in or- 
der, if surety be not given 76 B 

of public administrator 302 B 

state bonds to credit of school fUnd 

for moneys of estates 335 

of guardians 76, 343, 343 A, 366, 

374 to 376, 380 

of testamentary guardian 342, 343, 345 

of ^ardian, on sale of real estate. . . 366 

limitation of action on same 369 

of guardian, who may sue on 375 

limitation of such action 376 

by guardian, to remove property from 

the State 387 

See ''Sureties.'^ 

CERTIFICATE of proof of will 25, 24 

to claimant of uncalled for estate 278 

CITATION, to heirs resident in the 

county, on probate 14 

to executors or co executors named 
in will, when resident in 

county, 15 

On contest of will 81 

on contest of letters administration. . G8 

on justification of sureties 76 A 

application for new sureties 79, 83 

application of surety to be released . . 84 
of person charged with retaining, con- 
cealing, disposing of, &c., 
property or papers of de- 
ceased 117 to 119 

to render an exhibit 223, 225 

to render an account « 228 

to pay on partition bond. 257 

of executors or administrators, for 

waste, &.C 283 to 286 

mode, form, signature, seal, &.c. .288, 292 

time of service and return of 290 

mode of service and return. . . .288 to 290 

when clerk may issue 291 

to minor by probate judge 338 

CLAIMS AGAINST THE ESTATE— 
notice to creditors to be published. . 

128, 146 
court to designate newspaper when. . 128 

also time of publication 128 

copy and proof of publication to be 

filed 129 

barred within ten months 130 

contingent, when barred . .'. 130 

necessary afiidavit 131, 145 

to be presented with vouchers, when, 

131, 181 A 
to be allowed or rejected, how. . .182, 139 
if allowed to be presented to judge. . 182 

if allowed by both to be filed 133 

if rejected, suit to be brought in three 

months 134 

not to be allowed if outlawed 135 



every claim must be presented. . .136, 138 

vacancy in administration not includ- 
ed as part of time of lim- 
itation 137 

action pending, must be presented ... 138 

may be allowed in part 139 

judgment against executor or admin- 
istrator t» be filed 140 

effect of such a Judgment 140 

judgment against deceased must be 
presented, as in other 
cases 141 

may be referred, by agreement 142 

proceedings upon, reference and re- 
port 143 

claim against executor or administra- 
tor for costs Ii4 

claim of executor or administrator 
must be presented to the 
judge 145 

penalty if notice to creditors be not 
published in two months. 

146, 246 

statement of claims to be returned 

and filed 147 

due to the probate judge, to be pre- 
sented for approval. . . . 131 A 

property sold for payment of 

150, 154 to 156, 162 

contingent or disputed, may be paid 

into court, &c 244 

when may be collected as judgments 245 

CLERK of Probate Court to file and re- 
cord certificate of proof, 

&c 25 

to file petition for letters of adminis- 
tration 58 

to post notices thereof 60 

to issue cital^ion on application of 
next of kin to revoke let- 
ters administration 68 

to administer oath of executor or ad- 
ministrator 72 

may take justification of sureties 76 

to issue letters 49, 50, 51, 71, 89 

to give traixscript and certificate. . »• 102 

to administer oath to inventory Ill 

to administer oaths. 291 

when may MsMe siibpoenas and cita- 
tions 291 

to file notice of certifying issues .... 295 

to file notice of appeal 298 

to transmit papers to district court. . 301 

CODICIL 417, 481 



COMMISSIONS, see "Compehiation" 
and ''Fees and Expenses. 



ft- 



COMMUNITY PBOPBRTY 437 

COMPENSATION of referee. 148 

to executor by will 219 

renunciation of same 219 

fees allowed by law to executor or 

administrator.. 219, 221, 314 ii 



imtx. 



15t 



farther allowance. •..«.,. 221 

of lEuardian, ad Utem, 



236 

of auditor. 286 

of agent of absentee, on partition or 

distribution 275 

of guardians 862 

See "Eees and Elzpenses.' 



a 



OONTBOLLER OP STATE, to draw 
warrant for claimant of 

estate 278, 926 

to keep account of moneys of estate. S31 
to place same to credit of school fund 885 

CONTRACT FOR PURCHASE OF 

LAND, may be sold 182 

conditions of such sale 188 

bond to be giyen 184, 185 

CONTRIBUTION among legatees 

181, 413, 425 



CONVEYANCE OF LAND by Executor 
or Administrator 

sales of land to pay debts 154 et 

contract by deceased to make a con- 
veyance, to be carried out 

petition to be presented . • 

notice of hearing to be published. . . 

such publication to be proved 

hearing of petition and objections . . . 

decree for conveyance 

to be recorded in proper county. .... 

appeal from such decree 

remedy if decree refused 209, 

effect of such conveyance 

effect of recording copy 

court naay enforce. 

where party entitled to conveyance 
is dead.. 



seq. 

205 
206 
206 
207 
208 
208 
209 
209 
210 
211 
212 
218 

214 



COUNTY Court- 
judge. 



f< 



COSTS, by whom to be paid 802 

execution for 302 

see "Fees" 

see ''Expenses" 

on application for share of estate. . . 256 
on suit against executor or adminis- 
trator 189, 144 

on reference of claim 143 

on application for sale of property of 

minor 864 



1 
1 



COURT, county 1 

See "Probate Court." 
See "District Court." 

CR!^DITORS, when entitled to letters 

of administration 52 

cannot sue special administrator. ... 92 
to present claim for approvid. . 180 to 141 

notice to^, when published 128, 146 

and others may apply for order to 

sell real estate 164 

2 



may require executor or administrar 
tor to sue for certain 

property 202, 203 

may except to account 234 

may have dividend 241, 243 

may discount claim to become due. . 244 
may issue execution on debt allowed 

and ordered paid 245 

may recover debt, if notice has not 

been given 246 

DEATH OF STRANGER— 
to be reported to public administrator 304 

I>enalty for neglecting 304 

same of person without known heirs. . 304 

DEBTS, executor or administrator to 

collect 194 

when may be compromised 201 

when executor or administrator not 

held accountable for 218 

mheritance, sul^ect to 315 

community property subject to 437 

statement of, to be filed every term. . 147 
See "Payment of." 

DECREE FOR CONVEYANCE OF 
LAND— 

probate court may make 205^ 208 

district court may make 210 

DESCENTS AND DISTRIBUTIONS... 315 

subject to payment of debts 315 

manner of 315 

who shall inherit .< 315 

when to illegitimate child. 316 

from illegitimate child 317 

kindred computed according to the 

civil law 318 

to kindred of the half blood 318 

advancements to one or more heirs. . 

319 to 323 
inheritance of husband and wife from 

each ol^er 315, 824, 437 

"right of representation". 325 

to posthumous children 325 

to aliens and non-resident foreigners. 326 

of community property 437 

not to be altered by marriage contract 439 

DISTRIBUTION for payment of debts. . 

243 to 246 

among heirs, etc 247, 258 

of share or legacy on giving bond, 

before close 250 to 257 

of residue of estate 258 

proportions to be named in decree. . . 259 

who may apply for 260 

notice to be given 260 

questions as S> advancements made. . 

273, 319 to 323 

agent for absentee 274 to 277 

payment of taxes to be ordered before 

decree of 435 



DISTRICT COURT, 
constitutional provision. 



page 19 



158 



INDEX. 



t 



DISTRICT COURT— (Continued.) 
jurisdictioQ in probate matters. p. 20 to 23 

appeal to 209 

suit in, for decree of conveyance 210 

practice in, made to apply to probate 

court 293 

judgment in, on claim referred 143 

trial of issues in, from probate court. 20 

issues certified to 20, 294 to 296 

papers to be transmitted to, and re- 
turned 301 

EMBEZZLEMENT OF PROPERTY OF 
DECEASED— 

double the amount may be recovered 
by executor or administra- 
tor 116 

proceedings to examine under oath any 
party charged wrongfully 
as to property of estate . . 

117 to 119 

letters may be revoked for 226, 283 

proceedings by public administrator 

in case of.. 117 to 119, 309, 310 

of property of ward 377 

ESCHEATED ESTATES— 

when estates escheat 302 E, 327 

attorney general to file an informa- 
tion 328 

summons to issue and order to be 

published , 328 

appearance, pleadings and trial 329 

re<5eiver may be appointed 332 

who may appeal, etc 330 

to be paid into the treasury, 302 E, 331, 834 

controller to keep account of 331 

to go to credit of school fund 335 

owner of, may claim money within 
ten years, and land within 

five years 331 

land may be sold 331 

limitation in favor of infants, etc 331 

informer entitled to compensation— 5 

per cent 333 

ESTATE, real and personal, to be in 
possession of executor or 
administrator ........ 114, 194 

See "Real Estate." . 

See "Personal Estate." 

EXECUTOR entitled to possession of 

will 4,8 

to present will within thirty days 4, 6 

renunciation by, to be in writing. ... 6 

to present petition for probate 6, 8, 12 

liability of, for neglecting to act 7 

when to be cited, on probate 15 

to be cited on contest of probate, etc. 31 
how affected by revocation of pro- 
bate, etc 34 

when entitled to letters 41 

who competent to serve as 42 

objections against appointment of, 

how made and heard 43 

executrix marrying, forfeits oflBce .... 44 



executor of executor not allowed— 
provision in case of death 

of 45,96,96,97 

provision in case executor is under 

age 46 

power of executors where part only 

are appointed 47 

to give bond on appointment 73 to 76 

when excused ftom giving bond 77 

when bond subsequently required of. . 77 
to give bond on sale of real estate. . . 73 

may be cited to give new bond 79 

form of letters testamentary 60 

oath to be taken by 72 

letters may be revoked. .81, 86, 95, 96, 97 
death, insanity, or other incapacity of 

96, 96, 97 
where will is discovered after admin- 
istration begun, rights and 

duties of. 99 

resignation of , 100 

acts of, valid after removal 101 

debt against, not discharged by the 

will 109,110 

claim of executor to be presented to 

judge 145 

renunciation of compensation allowed 

b^ the will 219 

may bind child to service, when 392 

See "Administrator." 

EXCEPTIONS— see ''Objections." 

EXECUTION may issue against execu- 
tor or administrator to col- 
lect debts ordered by the 

court to be paid 245 

for costs 302 

cannot be issued on certain judgments 

140, 141 
if levied before death, may be com- 
pleted 141 

EXHIBIT - 
to be made at third term after ap- 
pointment 222 

hj whom required 222 

citation for same 223 

may be ordered whenever necessary. . 224 

citation to issue 225 

objections to exhibit 226 

may be compelled by attachment 227 

letters may be revoked for neglect of, 

etc 226,227 

EXPENSES on contest of will 35 

of sales of land 169, 186, 187 

of administration,. .123. 150, 154, 156, 

' 162, 177, 179, 181 

of suit at request of creditors 203 

allowed to executor or administrator. 219 

exhibit of .' 222 

vouchers of 231 

of last sickness 239, 242 

of guardians 382 

See "Fees." 

See **FuneraL" 



BBVXBVO aBcnoira.] 



INDEX. 



159 



EXTENSION of time to settle estate ... 247 

FAMILY OF DECEASED until return 
of InFcntorj entitled to . 
homestead, furniture and 
support 120 

after return of inventory allowance to 

be made 121, 122 

such allowance to have preference. . . 123 

homestead, (124 note,) 120, 124 

property set apart, where there is no 
law exempting property 
from execution 124 

apportionment of property set apart 
among the widow and 
children 125,127 

if property returned by inventory 

does not exceed $500 126 

allowance where estate is insolvent. .. 122 

FEES AND EXPENSES, on contest of 

will or of probate thereof. 36 
of person cited to answer under oath 

as to property of deceased 117 

on sale of real estate 186, 187 

when creditors liable for 203 

allowed to executor or administrator. 219 

commissions of " " 221 

extra compensation " .... " 221 

on application for share of estate 256 

and compensation of public adminis- 
trator 314 A 

See "Compensation." 

FINAL SETTLEMENT. 248, 249, 279 

FUNERAL EXPENSES to be first paid 

239, 249 

GUARDL^S AND GUARDIANSHIP 
to have notice of contest 
of validity or probate of 

will 31 

to have letters of administration when 

the ward is entitled 57 

to appear or be appointed for minors 
on application for sale of 

real estate 159 

ad litem to be appointed for minors, 

on settlement of account.. 235 
appointment of, by probate judge, . . . 

336, 348, 372, 378, 383 
minor may nominate, if over fourteen 337 
when judge may nominate for minor 

over fourteen. 338 

minor may nominate new guardian on 

arriving at fourteen 339 

father or mother entitled to guardian- 
ship 340 

when guardian has custody of ward. . .341 

powers of 342 

bond of, conditions 343 

provisions in relation to bonds of 

343 A, 374 to 376 
maintenance of minor out of his own 

income, when 344 

testamentary guardian 345 

or next friend in suit at law 346 



of insane or other incompetent person 347 

applied for 347 

See "Insane Person." 
such person to be notified and pro- 
duced before probate judge 347 

guardian to be appelated 348 

powers and duties of such guardian. . 349 

to pay debts of ward, etc 360 

to collect debts of wards 351 

may compound debts 351 

how to manage estate 352 

may assent to partition 353 

to make inventory 354 

to have property appraised 354 

to account, etc., same as administra- 
tors 354 

when ma^ sell real estate 350, 352 

how to dispose of proceeds 

355, 366, 357, 358 

to make petition for sale 359 

order to show cause to be published 

by 360, 361 

or to be served personally 361 

hearing of petition and objections... 362 

practice on the hearing 363 

costs allowed 364 

order of sale 365 

to give bond before sale 366 

to give notice 367 

to make return and other proceedings 
as in case of administra- 
tors 367 

must sell within a year. 368 

limitation of action against, for real 

estate so sold 369 

to render account 370 

to invest proceeds of sales, etc., under 

direction of court 371 

removal and resignation of 372, 373 

discharge of 373, 388 

marriage of minor terminates guaiv 

dianship 373 

may be required to give new bond . . . 374 
such bond to be filed and may be sued 375 

limitation of such action. 376 

proceedings on complaint of embez- 
zlement, etc 877 

guardian for non-resident minor 878 

powers of such guardian 879 

bond of such guardian 380 

extent of such guardianship 381 

expenses and compensation of. 382 

more than one, may be appointed. . . . 383 

account by joint guardians 384 

terms of sales of real estate by ..... 386 
how property of non-resident ward 
may be removed from the 

state 386,387 

proceedings for order of such removal 388 

efi'ect of such order 38 8 

minor may be apprenticed 389 

consent by guanlian 390 

See "Apprentice." 
may contract as to land claims of in- 
sane person 406 

may make certain conveyances 406 

to receive life insurance coming to 

minor 441 



160 



IKDBZ. 



HOMESTSAD. ..'. 120, 124, 124 note 

HUSBAND AND WIFE, inheritance 

from each other 315, 324 

tenant hj courtesy and dower, not al- 
lowed 436 

inheritance of community property. . 437 

marriage contract 439 

wife may insure life of her husband. . 440 
on her death, same to go to her chil- 
dren 441 

ILLEGITIMATE PERSON— 

inheritance by 816 

inheritance from 817 

INCAPABILITY of executor 96, 97 

INCOMPETENCY of executor 42, 44 

of administrator 66, 66 

cause of suspension 281 

INFANT, if named executor, what 

course» ••••••. .••••••••• 4o 

See " Minor." 

INFORMATION 

of death of stranger to be given pub- 
lic administrator 804 

of property liable to injury and waste 
to be given to' public ad- 
ministrator , 307 

by attorney-general to sell forfeited 

inheritance of foreigners. 326 
See " Escheated Estates." 

INHERITANCE, order of 815 

by illegitimate child 316 

by those of the half-blood 818 

from illegitimate person 817 

when " advancements " preclude. . . . 

818 to 823 

by right of representation 325 

kindred computed according to the 

civil law 318 

by aliens and non-resident foreigners. 826 
from husband and wife to each other. 

316, 824 
of life insurance. ...«.• 441 

INVENTORY AND APPRAISEMENT— 
to be made at first term after appoint- 
ment 105 

what to contain 107, 108, 109 

to be signed by the appraisers Ill 

to be sworn to by the executor or ad- 
ministrator Ill 

affidavit of appraisera to be attached. 107 
sworn hill of appraisers fees to be at- 
tached and allowed by the 

court 106 

claim against executor to be included 109 

even if discharged by the will HO 

subsequently discovered property to 

be inventoried 113 

how same may be enforced 113 

partnership property 198 



what value chargeable to executor or 

administrator. . . .216, 217, 218 

profit or loss on 217, 218 

by public administrator 305 

by guardian 364,380 

INSANE PERSON, guardian for 848 

application to appoint guardian for. . 347 

notice to be given to party 347 

party to be produced before judge. . . 347 

guardian to be appointed 348 

guardian to have care of person and 

estate. 849 

guardian to give bond. 349 

guardians to pay debts, etc., 350, 351 

guardian may be discharged when no 

longer necessarv 873 

See " Guardian." 

INVESTMENT of propertv of ward.. 

356, 371, 365, 368, 867 

ISSUES joined on probate of will 20 

certified to district court 20 

tried by probate court, when. ....... 20 

how made up 20 

what issues may be certified to dis- 
trict court 294 

when they may be certified 295 

manner of certifying 29t> 301 

mode of trial of issue 296 

JUDGMENT on suit pending 93 

in district court on claim referred. . . 148 

against deceased 141 

against executor or administrator. . . 144 

against estate 140 

for pajment of debts 246 

JURISDICTION, general, pages 17 and 18 

of probate and administration, {2 

county of residence ^ 2 

non-resident of the state, and dies out 

of the state 2 

non-resident and dies in county where 

be Itas estate 2 

non-resident) dies out of the state and 

leaves estate in more than 

one county 3 

petition for letters of administration. 58 
in case uiiere judge is interested, or 

next of kin, etc., etc 104 

of guardianship 336, 847, 378, 381 

JUSTIFICATION OF SURETIES on 

bond 76,76A 

LEGACIES AND BEQUESTS— 
when debt of executor is a legacy, 

how treated by executor. . 110 

bequeathed articles reserved 151 

rea^ estate may be sold to pay 

legacy 176 

liable to be sold when exempt 180 

contribution among legatees 181, 413 

payment of 247 

to witness to will. 412/413 



; *o actions.] 



INI)«X. 



161 



LETTERg OF 4J)MINISTRATIPN— 

in what coiintj granted. 2, 3 

applied {o|: hj petition filed 68 

when may he granted 69 

form of. 71 

oaitii to he taken hy administrator. . . 72 

may be revoked ...!.. 81, 86 

to speipial administrator 89 

to hte revoked if a will he found ..... 98 
air dots previous to re vocation J valid. 101 
8ub6eq[iient issuance of 280 

LETTERS OF ADMINISTRATION 
WITH THE WILL ANNEXED— 
to 'he issued when executor incompe- 
tent.. 42 

to he issued when executor dies 45 

to he ji^ued when executor is under 

age y. 46 

to he signed hy the clerk and un^er 

i' seal of the court. 49 

fori^ of 61 

oath to he taken hy administrator 

with, etc ...... i 72 

may be revoked 81, 86 

effect of revocation 101 

IJETTERS TESTAMENTARY— 

*in what county granted'. '. 2, 3 

to whom to he ^nted 41 

objections to he miaule, how, when, etp. 43 
to he 'signed by the clerk and under 

the seal of the court 49 

form of 50 

oath to he taken by executor 72 

m^j he revoked. 81, 86 

all acts previous to revocation valid.. 101 

LIABILITY for not producing will. 4, 6, 6, 7 

LIFE INSURANCE— 
" ' S^ "Husband and Wife." 

LOaTATION of time for contest of Y9r 

lidity or probate of will.'. 36 
of action to recover property sold by 
executor or administrator. 

' 190,191 
pf action against executor or adminis- 

* ■ * * traitor on his account 237 

of iMition against guardian to recover 
' ;' estate sold...:...:...... 369 

of action, against sureties of guardian 376 
vacf^icy of administration no part of 

limitiation J.37 

of claim of inheritiEihce hy absent alicA 326 
of claim to escheated proj^erty . • •'• •'• 331 • 

^AI^ES PREFERRED TO FE1|[ALES 

' in ^[)*an ting letters admhCL- 
i^tratrdn;............ ;; 63; 

in certain matter^ on pikrtition. . .266, 267 
age of majority of each.'. '. 407 

t^ABRIAGE of female, revokes letters. 44.66 
noil 6t dissolved; issue legltimatie ....'316 

of tppther, revokes j^uardlanship 3^ 

Of nunbr, terminates Guardianship. 942.$73 



of female, if lawftil and by proper con- 
sent, renders her of full age 407 
See *^Husband and wife." 

. contract, by minor. 438 

r coiitrsict, cannot alter descent 439 

MINOR and absent heirs, represented on 

probate 18 

and devisees, etc., represented on con- 
test of probate 32 

entitled to allowance, see '^Family of 

Deceased." 
to have guardian on application for 

sale of real estate 159 

also on settlement of accoun^ 236 

limitation of certain suits by'. 36, 191 

if named executor, what course pur- 
sued 46 

See ^'Guardians." 
See -^Apprentices." 

when becomes of age 407 

marriage contract by 438 

inherits life insurance on death of 

mother ". . . 441 

MINUTES OF THE COURT— 
proof of posting Notices to he entered 63 
certaih orders aS to sureties, etc., to 

be made in. . ... ' 87 

appointment 6r special administrator 

' ' ' to be entered'in. ." 89 

all orders of court to be ehtered 287 

pertain other orders to Ibe entered.. . . 287 
to be signed by jiidgfe at cloSe of term 287 

MORTGAGE to be included in inven- 

^ • ' Jfcbry 107 

proceeds of mortgaged land if sold to 

be' applied to mortgage. . . 186 

when a preferred debt ! . J 239 

hoVfat sdch' preference exjbends 240 

Security taken oii sales of real estate. 

N|:XT FRIEND, or guardian ad litem. 
■ * ' ' 34^,351 

^TjBXT OF KIN, when entitled to letters 62 
how computed. . . . . . 318 

NOTICE, of time for pro^g will 13 

when to he published 33 

'wheu to be posted 13 

of proving lost will , 37 

of foreign probate ; . 28 

on contest of prbbate, etc. 31 

of application for letters adminisjtra- 

tion 60 

to creditors, to be published 128, 146 

of appUqationi for sale of persona^ pro- 
perty. '.." l i.. . 160 

of sale of personal property 152 

of application for sale of real estate. . 167 

"of sale of real estate J66 

of postponement of sale 176 

to show cause— attachment l^^, 198 

of appllcajtion fpr dec^^ tp inake con- 
veyance.... 208 



^ 



162 



INDEX. 



Ct 



NOTICE— (Contiiraed.) 

of settlement of account 233 

same to be posted 233 

to administi'ator or executor, on com- 
plaint of wasting, etc 283 

how same may be served 283, 285 

of certifying issues 296 

of appeal 298 

to interested person on escheat 328 

to insane person to be produced be- 
fore probate judge 347 

on application to remove property of 

ward from the state 387 

NUNCUPATIVE WILL 410, 414 to 416 

how made 414 

to be proved within six months 415 

probate, not to be granted for 14 days 416 

widow, etc., to be notified 416 

probate may be contested 416 

OBJECTIONS to probate of win 20 

on contest of will or probate 30 

on application for letters of adminis- 
tration 61 

to sureties 76 A 

to orders of sale 149, 158 

to confirmation of sale . 170 

' to conveyance in certain cases 207 

to exhibit 226 

to account 234 

PARTITION, when may be made. .255, 261 
three commissioners to be appointed 

and gworn ,••.. 261 

warrant to issue to them 261, 270 

where the estate lies in different coun- 
ties 262 

petition for, by parties interested. . . • 263 

notice to be given, manner of 263 

assignee of heir entitled to 264 

where partition cannot be made the 
whole to be assigned to 
part^r, who shall pay the 

rest in cash 266 

shares to be distinctly separated 265 

two or more may consent to take in 

common 265 

any tract not admitting of partition 
may be assigned to one, 
who shall pay the rest. . . . 267 
the commissioners to award such sums 267 
or the whole estate may be sold and 

the proceeds divided 268 

' division of property of the estate from 

other property 269 

when such division binding 269 

guardian for minors, etc, to be ap- 
pointed 270 

agent to be appointed for absentees. . 270 
notice to be given to commissioners. . 270 

report of commisisoners, 268, 271 

copy to be recorded 271 

not necessary unless requested by 

parties 272 

questions as to advancements made to 
be settled by the court. . . 

319 to 323, 273 



and to be specified in the decree and 

m the warrant 273 

agent to take portion of absentee .... 274 

such agent to give bond 275, 277 

estate unclaimed for a year to be sold 

and paid into the treasury 276 
claimant subsequently appearing may 

draw from the treasury. . . 278 
guardian may assent to and join in. . . 353 

PARTNERSHIP, parties not entitled to 

administer. 52 

to be included in inventory 107 

surviving partner to settle 198 

of public administrator, with interest- 
ed person forbidden .... 302 D 

PAYMENT OF DEBTS, in what order. 239. 

extent of preference to mortgage 240 

dividend 241,243 

order directing payment. . . .242, 243, 247 
such order, a judgment and executor 
or administrator personal- 
ly liable 245 

contingent or future debt 244 

of all the debts, etc., and discharge of 

executor or administrator. 279 
of taxes 482 to 435 



PERISHABLE PROPERTY— 

sale by special administrator 

sale by executor or administrator. . . 
See "Sale of." 



92 
150 



PERSONAL ESTATE— 
to be in possession of executor or 

administrator 114 

to be first chargeable with debts 115 

See "Sale of." 
executor or administrator to take pos- 
session of. 194 

POSTHUMOUS CHILDREN— 
inherit as if living at death of parents 325 
inherit, though omitted in will. . .423, 425 

PRACTICE in district courts made ap- 
plicable to probate courts 
(see page 21) 293 

PREFERRED DEBTS 123, 239, 240 

PROBATE COURT— 

constitutional provision page 17 

organization of *^ 17 

powers of " 17 

jurisdiction of,— terms of " 18 

judge of 

powers of judge of 

practice of 

issues joined in. ** 22 

See **l8sueB." 

appeals from *^ 22 

See "Appeals." 
title and jurisdiction § 1 

PROBATE JUDGE, powers of. .pages 17,18 
title of § 1 



« 17 
« 18 
« 21 



99 •sentnn.3 



INDEX* 



168 



PROBATE OF WILL, petition for 6, 8, 9, 12 

place of 2, 3 

time for 13 

notice of, by publication 13 

notice of, by poeting 13 

citation and subpoenas 14, 15, 16 

continuance of hearing 17 

proof of notice of 17 

proof of citation served 17 

when testimony taken 17 

contest of 18, 19, 20, 21, 30 to 36 

attorney for minor and absent heirs. . 18 

who may contest. 18 

testimony of one witness sufficient, 

when will not contested. . 19 

what must be proved 19, 21, 22, 24 

grounds of contest to be filed in 

writing 20 

issues of fact to be certified to district 

court 20 

issues, by consent may be tried by 

probate court 20 

issues, how joined 20 

issues, how made up and tried 20 

issues, verdict thereon 20 

issues, finding of jury to be certified 
to probate court for its 

action thereon 20 

when all the witnesses must be pro- 
duced 21 

when all the witnesses are absent. ... 22 

proof of handwriting 22 

proof of sanity of testator 22 

testimony to be in writing and signed 23 

eftfect of same as evidence 23 

certificate of proof 24 

will and certificate of proof to be re- 
corded 25 

efiect of record as evidence 26 

See "NuncupativiB Will." 

PUBLIC ADMINISTRATOR— 
when entitled to letters administration 52 
when to take charge by order of court 88 

to be elected 302 A 

term of office 302 A 

bond of 302 B 

duties and compensation 302 G 

not to be interested in expenditures 
made on account of the 

estate 302 D 

nor to have a partner so interested. . 302 P 

to make affidavit of same 302 D 

to make return every six months. . .302 E 

to publish such return • • . 302 E 

to pay over on close of estate 302 E 

to settle monthly with county clerk. 302 F 

by fhll statement under oath 302 G 

penalty for neglect of same 302 H 

punishment of misdemeanor 303 

entitled to notice of death of stranger 304 
to make inventory and to administer. 305 
to deliver papers and property to 
any other administrator 

appointed 306 

civil officers to inform him of property 

liable to injury and waste. 307 
to bring all suits necessary 308 



may have citation to answer against 
person having property of 

estate 309 

such person compelled to answer in- 
terrogatories, by attach- 
ment 310 

may be ordered to account to heirs, etc 311 

to render yearly list to auditor 312 

fees and compensation of 314 A 

REAL ESTATE— 

rents and profits go to executor or ad- 
ministrator 114 

possession of to bo in executor or ad- 
ministrator 114 

may be sold for payment of debts, etc. 115 

title deeds to, may be traced in hands 

of third parties 117 

See " Sales of." 

executor or administrator to take pos- 
session of. '• 194 

RECORDING— 
order of sale of real estate and order 
of confirmation of same. . 

171, 172 
certified copy of decree for convey- 
ance in proper county, . . . 209 

effect of such recording 212, 213 

report of commissioners on partition. 271 

REDEMPTION of property sold for 

taxes 434 

REMOVAL of executor or administra- 
tor, see " Revocation." 
of guardian 872 

RESIDENCE of deceased 2, 3 

RESIGNATION of executor or admin- 
istrator 100 

must first settle accounts and deliver 

up property 100 

or letters may be revoked .,100 

a general or special administrator ap- 
pointed 100 

sureties liable on 100 

of guardian • 872 

RENUNCIATION of executorship-. . • , 6 
of compensation by executor 219 

REVENUE ACT— 

taxation of property of widows and 

orphans 432 

listing of undivided property of de- 
ceased persons 488 

redemption by minors of lands sold 

for taxes 434 

court to direct payment of taxes due 

by estate 485 

no distribution until taxes are paid. . 435 

REVOCATION of Probate 83 

proceedings on 80 to 86 

effect of upon former proceedings. . . 84 



m 



I9i>p:. 



^? 



«*>Mt) ••• •■••• • ^ *w^« 



B£VOCAXiaN--<Coiitm]ied.) 
of letters of admintstratioD on petition 

of one l>etter entitled. 67 to 70 
of letters on failing to give new sure- 
ties 81,86 

of letteiis on failing to account atter 

resignation. 100 

of letters of administration on a will 
being discovered and pro- 
bated 98,99 

effect of revocation of letters 101 

of letters, for not returning inventory 112 
6f letters, for not publishing notice 

to creditors 146 

of letters, for not returning account 

of sales on oath 192 

of letters, for waste, embezzlement, 

etc 226,283 

of letters, for not rendering exhibit.. 227 
account may be compelled ufter revo- 
cation 229 

of letters for not rendering account, 280 
for embezzlement or waste, etc., 281 to 286 

removal of guardian, 872 

will, mode and effect of 417, 418 

will, by subsequent marriage 419 

will of woman, by siUt>8eqiient mar- 
riage i 420 

wil not effected by certain covenants, 
charges. Incumbrances, 
etc 421,422 

SALE OP PERSONAL ESTATE— 

when order of court necessary. . .1^8, 17§ 
petition fpr order of sale. . .1 . . . • .i49,l&0 

must give notice ,,\.',. 150 

inay apply either in vacation or term, 150 

order of sale 151 

what articles first sold. ..••... ^ ... . 151 

notice of sale to be given 152 

manner of, plan of.. 152 

how notice of sale to be given 158 

;^heh personal estate insufficient real 

estate to be sold'.' 154, 164 

private sale, by leave of court. . .... 152 

^wrheti dir^ctied by the will,to be accoi'd- 

ing thereto. ........ 176 to 179 

when legacies subject to debts.. . ', . J. 180 
contribution among legatees....... 181 

SALE OP PERISHABLE PROPERTY 

by specfal administratof. 92 

order of court necessary X4^ 

petition for order of sale. • ..... 149, l60 

BALE OF REAL ESTATE— 
bond to be given by executor or ad- 
ministrator.-'.' . .' 73 to 76 

order of* probate court when neces-' ' 

sary.... :....*.: 148,178 

petition for order.. ............. 149, 155 

jcontents of petition. 155 1 

judge may makie order for perisohs in- 
terested to appear and 
show cause against appli- 
cation U . . . . . . . . . . 156 



such prd^r how served a»d hpMT P^l>- 
tisbed 157, l59, 

when seryice inay be dispensed with, 

hearing of application. ...... 158 to 

proofs and objections of opponent 149, 

guardian to be appointed Sot minors. 

witnesses, testimony, etc., 

court may authorise sale 

court s)iall make order of sale 

order, what to specify 

latid not devised to be first sold 

this application may be made by 
others 

authority of executor or administrator 
to sell 

certified copy to be given. 

notice of sale by posting and by pub- 
lication. 

place and time of such sale 

security, when credit is given 

return to be made 169, 

a re-aale may be ordered 

on return objectioas may be made. . . 

proof of notice of sale to be given. . 

order, confirming sale '171, 

certified copy bfder of sale and order 
of confirmation to be re- 
corded. 

conveyances to purchaseris • 

form and effect of . . . . '. 

notice of sale to be proved before or- 
der.^ \ .1.1. 

ex^ecutor or administrator may post- 
pone tlie isale ifor thfee 
m6hths. ..I.... .....]... 

hoyr notiqo of postponement may be 
given 

sale of real estate to pay a legacy. . . 

sale of estate appointed by th^ will. 

'-'•'■■ ■ - 177, 

order of court not necessary wl^o 
sale is directed {>y Uip\\^ 

manner pf sale order by will. . .i . . I . 

if provision by the will be ipsn^cJept 

estate devised, when subject to delits 

contribution among devisees, etc.',.V . 

interest in contract for land niiay p^ 
sold ^ . . . . 

purchaser to give bond of indemnity, 

condition of such bond. 

contract to be assigned to pundiaser, 
proceeds of mortgaged land, bow ap- 

■ ' plied... ,. 

expenses of sale, first paid .......... 

tnraconduct or neglect in sale 

fhiudtil^nt sale 

action to be commenced within three 

yeirs. 

minors and others have three years 

after removal of disability 
account of sales under oath; . . . . .'/. 
attachment for neglectin|r. ...;...;. 
exectiCor or administrator forbidden 

to buy the ^tate« ...... 

sale by guardian .............. 855 to 

- see " Guardian.*' . - 



164 
157 
163 
158 
159 
160 
161 
162 
163 
163 

164 

165 
166 

166 
167 
168 
170 
169 
170 
178 
173 



171 
172 
172 

A' 

173 



174 

175 
176 

178 

178 
178 
l79 
180 
181 

182 

i83 
184 
18& 

186 
187 
188 
189 



190 K^. 



191 v> 
162 • 
19^v^ 



•0U 



19S 

368 



.;•:? 



INDEX. 



165 



SEAL OF COUBT-. 

certificate of proof to htro 24 

letters testamentary^ i 49, 60 

letters of administration with will an- 

. nexed. 49,51 

letters of administration 71 

glTOS aathority to take justification. . 76 

certificate to be given under 102 

what writs and processes to have* • • . 292 

SEBVANT, see "Apprentice." 

SETTLEMENT of account — 
See "Account" 

SPECIAL ADMINISTRATOR— 

who may appoint. •'........ 88 

wlien appointed. . .88, 89, 91, 95, 100, 282 

how appomted 89, 90, 91 

bond of . : 73, 76, 91, 282 

letters and form thereof 89 

^0 entitled. 90 

duties and liability of 92, 93, 94 

when his office to cease * 93 

to render account under oath 94 

when may resign 101 

STRANGER— 
death of, to be reported to public ad- 
ministrator 804 

penalty for neglecting same 804 

SUBSEQUENT ADMINISTRATION.. 

126,280 
SUBSEQUENTLY DISCOVERED Es- 

tate 280,118,126 

SURETIES, justification of 76 

of executor and administrator 73, 76 

on sale of real estate 73, 76 

when new ones required 78 

desiring to be released 84 to 87 

proceemngs on application. . .78 to 81, 87 
Kiffewed by order of probate judge. . . 83 

when surety magr be discharged 85 

of special administrator 91 

when liable on resignation of executor 

or administrator 100 

limitation of action against 876 

of gnardiaa discharged from liabilit/ 874 
See *'Bond." 

SUSPSI^XON of power of executor or 
administrator for wasting, 
embezzling^ etc., 82, 281 to 286 

lAZBS, exemption in favor of widowi 

and orphans. • . • • 482 

liitiog imdivided property. ..••'•*. 488 

redemptioD by minors 484 

payment of, to be ordered by the 

court 485 

to be paj4 before distribution 435 

f&EASU&i;!^ io l>ay certftin moneys 
at esutei to claimant. • 

27d, m I 



to place certain moDe3r8 to credit of 

the school fund 326 

See "Escheated Estates." 

UNCLAIMED ESTATE^ 
to be put into bands of an agent f6r 

one year 276 

to be sold and paid into the treasury 270 
to be paid to claimant when he ap- 

. pears •• 278 

of foreigner, to be sold 326 

WASTE— 

letters may be revoked for 226,288 

actions for 196,197 

• guardian may be removed for 872 

notice of, to be given to public ad- 
ministrator 807 

See ''Embezzlement." 

WILL ANNEXED— see 'Administrator 
with the Will Annexed. 

WILL— in what county to be proved* • .2, 3 

to whom to be delivered 4, 5 

to be acted on within thirty days. . . .4, 5 

liability for not producing 7 

petition for probate of 6, 8, 9, 12 

petition for production of 8, 9 

by any interested person 9 

order requiring production of.. 10 

party charged may be cited 117 

penalty for not producing 7, 11 

time to be appointed for proving. ... 13 
notice of such time to be published.. 13 
when such notice may be posted. ... 13 
when witnesses of, to be subpoenaed. • .16 
when heirs, etc., to be cited on pro- 
bate • • 15 

proceedings on probate of 17 to 26 

See 'Probate of Will." 

contest of 18 to 21, 80 to 36 

to be recorded 24, 25 

lost or destroyed will, how, wben, 
where, etc., to be proved 
and established. . .87 to 89, 40 
to whom letters are to be issued. ... 41 
discovered and admitted to probate 
after administration be- 
gun 98, 99, 101 

where sale of real or personal estate 

is ordered by 176 to 181 

who may make 408 

by married woman 409 

mast be in writing, and attested 410 

bow probated where witnesses be- 
come incompetent • 411 

legacies, etc., to witness, when void. 412 
legacies, etc., to witness, wben saved 418 

nuncupative 414 to 410 

proof of nuncupative*. 415, 416 

mode of revoking will 417 

effect of revocation of a second will 

upon a previous will * • • • . 418 
when rerplced by subsequent mar* 

riage. m ....r 419 



166 



IllDBS. 



WILL— (Continued.) 
of unmarried woman reroked hy 

marriage •• 420 

bond, etc., to convey, devise, etc., not 

a revocation of. 421 

charges and Incumbrances not a re- 
vocation of 422 

posthumous child, how effbcted by 

428 
not providing for children, effort of* • 424 

children, etc., omitted in, how to re- 
ceive their shares 426 

such children precluded by advance- 
ments 426 

lineal descendants to take share of 

deceased devisee 427 

effect of devise of land 428 

when subsequently acquired land 

passes by the will 429 



made in another county or state, 

when Yalid. «« 480 

includes codicil , « 481 

WITNESSES TO WILL 

19, 21, 22, 28, 410, 411 

rights of, as to legacies • «412, 418 

nuncupative 414 to 416 

WOMAN, married 86, 44, 56, 340 

limitation of time to contest will, etc. 86 
marrying revokes her letters testa^ 

mentary 44 

marrying revokes her letters admin- 
istration. . • . • • 66 

when of full age •••••« 407 



WBITS AND PROCESS— 
how signed and sealed* • • 



292 



APPENDIX OF FORMS. 



fm » 



The following forms are in part selected from the files of the Pro- 
bate Court of the County of San Francisco. Others are 
drawn from the statute for the purposes of the work, and are 
arranged with marginal references to the sections upon which 
they are based. The arrangement follows the general order 
of the statute. 



■^^- ^- SectioM 

PETITION FOR PROBATE OF WILL IN THE COUNTY OF WHICH DE- ^Icf ® 
CEASED WAS A RESIDENT AT THE TIME OF HIS DEATH. (§ 2.) 

To the Hon. the Probate Court [or the Probate Judge, § 12] of the city and county $ 5, 12. 
of San Francisco, State of California : 

Your petitioner, John Clay, of San Francisco, herewith presents to this court the § 6, 6. 
last will and testament of Henry Clark, deceased, and showeth as follows : 

That said Henry Clark died, in the county of Los Angeles in this State, on or 
about the fifth day of January, 1858, being at that time a resident of the city and 
county of San Francisco, and leaving real and personal estate of the value of ten 
thousand dollars. 

That Mary W., the wife, and Alexander C, the father of the deceased, residents ^ 14. 
of this county, are the only heirs at law. 

That John Black and Susan Black, minors, residing in the county of Sacramento, 
and the said wife and father of said deceased and your petitioner are the devisees 
under said will. 

That your petitioner and Bichard Ross are named therein as executors, and the 
said Richard Ross intending to decline said trust presents and files herewith his ^ 6. 
renunciation thereof. 

Wherefore your petitioner prays that said will may be admitted to probate and ^ g^ 
letters testamentary issued to him, and that this Hon. Court wouldfor that purpose 
appoint a day and order notice of the same to be given by publication, and that a 13^ 
citations may issue to the heirs residing in ihis county and all other necessary and ^ i^' 
proper orders may be iLade in the premises. 

And your petitioner will ever pray, etc. 
Aprn 12th, 1868. John Clay. 



11 APPENDIX. 

SeetioiiB 
Probate 
Act. 3>TO. S3. 

PETITION FOR PROBATE AND ISSUANCE OP LETTERS TESTAMENTARY. 

To the Honorable Probate Judge in and for the county of San Francisco, State of 
California : 

The undersigned respectfully submit herewith to this Honorable Court the last 
will and testament of Joseph Libby Folsom deceased, who at the time of his death 
was a resident of the county of San Francisco, State of California, and who departed 
this life on the nineteenth day of July, 1858, at the Mission of San Jose in this 
State ; and the undersigned pray that the said will be admitted to probate and that 
letters testamentary be issued to them as executors ; that a time be appointed for 
proving said will and that the proper orders in the premises be issued. 
San Francisco, 24th July, 1866, H. W. Halleck, 

Arch'd C. Peachy, 

P. Wabbek Van Winklb. 



isro. 3. 

PETITION FOR PROBATE OF WILL AND CODICIL. 
In the Matter op the Estate ^ j^ p^^^^^ ^^^^^ ^^^ ^^ ^^U^^ 
William D. M. Howard, Deceased. ) ^^^^^^ ^^ ^^^ Francisco. 



The petition of Agnes Howard, Joseph P. Thompson, Henry F. Teschemacher 
and George H. Howard respectfully shows to this Court that heretofore, to wit, on 
the 19th day of January, a. d. 1856, the above named William D M. Howard departed 
this life; that the said decedent at the time of his^death was seized and possessed of 
certain real estate and other property situated in the said county of San Francisco 
and elsewhere; that previously to the time of his said death, to wit, on or about the 
eighth day of April, one thousand eight hundred and fifty-three, the said decedent 
then being at the city of San Francisco, made and published his last will and testa- 
ment, wherein and whereby he appointed his wife, your petitioner, Agnes Howard, 
and your petitioners Joseph P. Thompson and Henry Teschemacher executors 
thereof, which said will is now on file in the office of the clerk of this court and to 
which your petitioners beg leave to refer, and that subsequently to the making of 
the said will and prior to the time of his said death, to wit, on or about the sixth 
day of June, one thousand eight hundred and fifty-three, the said decedent then 
being in the city and State of New York, made and published a codicil to his said 
will, wherein and whereby he appointed your petitioner George H. Howard an 
executor of said will with equal powers and in addition to the executors so afore- 
said named, which said codicil is now on file in the oflSce of the clerk of this court 
and to which your petitioners beg leave to refer. 

Your petitioners therefore pray that the said will and codicil may be admitted to 
probate, and that letters testamentary may be issued to them according to the pro- 
visions of the said will and codicil thereto, and pursuant to the statute in such cases 
made and provided. 

Dated San Francisco, January 23, 1856. Lake & Rose, 

Attorneys for Petitioners. 



IsTO. 4. 
RENUNCIATION OP TRUST BY EXECUTOR NAMED IN THE WILL, (§6.) 

In the Matter of the Estate ^ p^^^^^ ^^^^^^ 

^' Henry Clark. Deceased. ) City and Comity of San Francisco. 

To the Hon. the Probate Court of the city and county of San Francisco : 

The undersigned, Richard Ross, who is named as one of the executors named in 
the will of Henry Clark, deceased, respectfully shows to this court that it is his in- 



r 



APPENDIX. lU 

Seetiona 
Probate 



rTO DAT 

tention to decline the said trust as such executor, and he therefore renounces all Act. 
claim or right thereto, and hereby declines said trust, relinquishing the same to and 
in favor of John Clay, who is also named therein as executor. 
April 12th, 1868. Kichabd Ross. 



isTO- es. 

PETITION FOR THE PROBATE OP A WILL IN THE COUNTY IN WHICH 
DECEASED MAY HAVE DIED, LEAVING ESTATE THEREIN AND NOT 
BEING A RESIDENT OF THIS STATE. (^ 2) 

To the Hon. the Probate Court [or the Probate Judge, ^ 12] of the county of Sacra- ^5 12 
mento, State of California : v > • 

The petition of Albert Bull, of the city of Sacramento, respectfully showeth — ^ a 

That John Porter died in this county on the first day of February last, leaving ^ 
personal estate therein to the value of twelve thousand dollars or thereabouts, x ^S 
That said deceased was at the time of his death a resident of the State of Ken- ^ 
tucky, at which place all the heirs of deceased reside, as your petitioner is informed 
and believes. 

That said deceased left a will wherein your petitioner and Peter Thomas and 
James Rose are named as executors, which is herewith presented and filed in this a g 
court as the last will and testament of said John Porter deceased. ^ * 

And your petitioner prays that the same may be admitted to probate and that 
letters testamentary thereon may be issued after proper hearing and proof, and ^ 5^ 
for that purpose that a day may be appointed and due notice be given by publi- ^13, 
cation, and that citations issue to said executors [insert names of those executors / ^5* 
residing in the county] and that all other orders be made and proceedings be had 
in the premises according to law. 

Dated Sacramento, February 6th, 1868. Albebt Bull. 



2sro- e. 

PETITION FOR PROBATE OP WILL IN THE COUNTY IN WHICH ANY 
ESTATE MAY BE, DECEASED HAVING DIED OUT OF THE STATE 
AND NOT BEING A RESIDENT THEREOF AT THE TIME OF HIS 
DEATH. (§2.) 

To the Probate Court [or the Probate Judge, ^ 12] of El Dorado, State of Cali- 
ifornia : 

The petition of Abel Williams respectfully shows to this Court — 

That your petitioner has received information of the death of Andrew Reed, a 
resident of the Territory of Oregon, who died at his residence in the said Territory 
on the tenth day of July, 1857. 

That said deceased left a will in which, as your petitioner has learned within the 
last thirty days, he is named as one of the executors, and which is herewith pre- ^ 5^ 
sented and filed in court. 

That said deceased left estate in this county and in other counties of this State, 
but no application for letters testamentary upon said will has been made in any 
other county. a 3^ 

Wherefore your petitioner would humbly pray that said will may be admitted to ^ 
probate and that letters testamentary thereon may be issued to him, and for such 
purpose that a time be appointed and all persons interested be notified and cited as / g 
required by law, and that aU other necessarj' orders in the .premises be made by a 13^*5 
this Honorable Court. 

Abel Williams. 



IV APPENDIX. 

Sections 
Probate 
Act. I<TO- 7- 

PETITION FOR PRODUCTION OF WILL AND PROBATE WHERE THE WILL 
IS IN POSSESSION OF A THIRD PARTY. (^8.) 

To the Honorable the Probate Court [or the Probate Judge, (^ 12] of the county of 
Monterey, State of California : 

The petition of Catharine Hall, of the county of Monterey, respectfully showeth — 
§ 2. That Joseph Hall^ late a resident of this county, departed this life on or about the 
16th day of January, 1858, leaving large and valuable estate, real and personal, 
in this and other counties of the State of California. 
That said deceased left a \^ ill in the hands of one William Hall, a brother of de- 
§ 10. ceased, which is still in the possession of said William Hall, as is shown by the 
affidavit of Henry Cole annexed hereto, and has never been presented for probate. 
§ 9. That your petitioner is the widow of said deceased and a devisee under the said 
§ 8. win, and she therefore prays that the same may be produced and admitted to pro- 
§ 10. bate and that letters testamentary be issued to the proper parties, and for that pur- 
pose that the order of this court may be issued and served upon the said William 
Hall requiring him to produce the said will at such time and place as may be named 
by this court, and that all other necessary and proper orders be issued. 
January 4th, 1858. Cathabinb Hall. 



IsTO- 8. 

PETITION FOR ALLOWANCE AND RECORD OF A WILL PROVED AND 
ALLOWED IN ANOTHER STATE OR COUNTY. (^27.) 

To the Honorable the Probate Court of the city and county of San Francisco : 

5 28. Your petitioner Nathan Sands herewith produces a copy of the will of Samuel 

Anson deceased, and the probate thereof duly authenticated, and alleges as follows: 

That the said Samuel Anson died in the State of Alabama in May, 1857 ; that his 

§ 27. said will was duly proved and allowed in the Surrogate's court of the county of 
Westchester, Stite of California, on the tenth day of June, 1857, and letters testa- 
mentaiy thereon were issued to your petitioner who is named therein as executor. 
That said deceased left estate in the city and county of San Francisco, State of 
California, which has not been administered upon ; and that said will is executed 
in conformity with the laws of this State. 

§ 29. Wherefore your petitioner prays that said instrument may be allowed in this 
court and that said authenticated copy may be filed and recorded, and that said 
will may have the same force and effect as if it had been originally proved and 
allowed in this court, and that letters testamentary thereon be granted to your peti- 

§ 28. tioner.* That a day of hearing of this application be appointed and that due notice 
thereof be given by publication according to law. 

^ Nathan Sandb, Petitioner. 



[another form.] 

PETITION FOR ALLOWING AUTHENTICATED COPY OF WILL AND LET- 
TERS OF ADMINISTRATION WITH WILL ANNEXED. 

I5 THE Matter of the Last Will ^ ^^^^ ^ ^^ 

AND Testament OF > a«« T?^ot,«,'a««n^«r.t^ 

Charles L. Cask, Deceased. 5 San Francisco Connty. 

§ 6, 58, To the Honorable the Probate Court of San Francisco county : 
60. The petition of Robert C. Rogers, Public Administrator, showeth — 

That Charles L. Case departed this life in the town of Newburgh, county of Orange, 
in the State of New York, on or about the twenty-fifth day of March, a. d. 1857. 
That the said Case at and immediately before the time of his death w^as a resident 
of the State of New York; that said Case has left certain property, part of his es- 



§2. 



APPENDIX. V 

Seetion« 

tate, situated in the city and county of San Francisco aforesaid, to wit, one undivided ^^^^ 
half part of all that certain lot of land known and numbered on the oflBcial map of , „ 
the city of San Francisco as Beach and Water Lot No. 262, and one imdivided half ^ * 
part of a portion of Beach and Water Lot No. 261. 

That said Case left his certain last will and testament duly executed in conform- 
ity with the laws of this State. That said last will and testament was duly proved § 27. 
and allowed in said state of New York, in the Surrogate's court of the county of 
Orange, and is now remaining in the Surrogate's office of said county in said State 
of New York. That your petitioner now presents to this Honorable Court a copy of § 28. 
said last will and of the probate thereof duly authenticated, and desires that the 
same may be allowed and recorded in this county aforesaid. 

And your petitioner further shows that the said Case in and by his last will and 
testament, as will appear by reference thereto, nominated and appointed his brothers 
Robert L. Case and Augustus L. Case executors of his said last will and testament, 
and that the said executors are incapable of executing their said trust in said State 
of California, because the said executors Robert L. Case and Augustus L. Case, do 
not reside in the State of California and are absent from the said State, and do not 
intend to accept the said trust in the State of California, and have not presented the 
said will or any copy thereof to be admitted to probate in said State of California, 
and that no application has been made in the State of California for letters testamen- 
tary or of administration in this State, and your petitioner further shows that there 
are no heirs or kindred of the said Case residing in the State of California, or at 
present in the said State ; that your petitioner is public administrator of San Fran- 
cisco county. 

Wherefore your petitioner prays that the said last will and testament of said 
Charles L. Case be allowed and admitted to probate in this Honorable Court, and that 
the said copy thereof may be filed and recorded herein with the same force and effect § 29. 
as if the said original will were here produced, and that letters ot administration 
with the will annexed may be issued to your petitioner, after due notice according 58. 
to law. §60,18. 

And your petitioner will ever pray, and so forth. 

January 18th, 1868. Robbbt C. Rogeeb, Pub. Administrator, 



2sro. lo, 

PETITION TO ESTABLISH A LOST OR DESTROYED WILL. ($ 37.) 

To the Honorable the Probate Court of the county of San Joaquin, State of Cal- 
ifornia : 

The petition of William Thorp respectfully showeth — 

That James Anderson then a resident of this county died on the 8th day of June 
last, leaving estate real and personal. That letters ol administration upon his estate 
were granted to the public administrator of this county by this court on the 2d day 
of July, 1867. 

That said deceased made a will which was in existence at the time of his death, § 38. 
[or " was fraudulently destroyed in his lifetime," as the case may be] wherein your 
petitioner was named executor, which has been lost [o9* '' destroyed," as the case § 87. 
may be, stating the mode or cause] as appears by the affidavit of Sarah Anderson 
annexed hereto and made a part of this petition, and that the provisions of said will 
can be clearly and distinctly proved by Sarah Anderson and James Chase, two cred- 
ible witnesses residing in this county. 

Your petitioner would further state that said public administrator has made an § 40. 
application to this court for the sale of certain real estate, which under the terms of 
said will has been devised to the family of deceased, and there is sufficient other real 
estate belonging to said, estate to pay the debts of deceased and all expenses of 
administration, without resorting to the property so devised. 

Wherefore your petitioner prays that a day may be appointed for hearing this 
application and that due notice thereof may be given by publication according to § 13, 
law ; that upon said hearing this court shall proceed to take proof of the execution § 87, 
and validity of the said will and to establish the same, and that upon the same be- 
ing established the proper certificate of the provisions thereof under the hand and § 89. 
^al of this court may be made and recorded, and that your petitioner may be ap- 
pointed executor of said will, and that letters testamentary thereon may be issued- 



VI APPENDIX. 

Sections 

^g^ to him, and that in the mean time the said administrator may be restrained from 
§ 40. proceeding with the sale of said real estate or from any other acts which would be 
iiyurious to the legatees or devisees claiming under said lost [or destroyed] will. 
And your petitioner, as in duty bound, etc. 

WiLLUM Thorp. 

State Cmjfornia, ) 

County op San Joaquin, j 

William Thorp being duly sworn says that the matters set forth in the foregoing 
petition are true. 

William Thorp. 
Sworn before me, August 12th, 1857. 

A. B., Notary Public. 



IsTO- 11- 

ORDER OF PUBLICATION OF TIME APPOINTED FOR PROBATE OP 

WILL, &c. 

In the Matter of the Estate ^ j^ p^.^^^^ ^^^^^ 

Henry Clark, Deceased. ) ^'^^ ^^^ ^^^^^^ ^^ ^^^ Francisco. 

§ 13. On Reading and Filing the Petition of John Clay, praying for admission to Pro- 
{ 6. ^ate of a document filed herein, purporting to be the last Will and Testament of 
Henry Clark, deceased, and the issuance of Letters testamentary to the said peti- 
tioner. 
§ 13. It is by the Court Ordered, That Monday, the 26th day of April, A. D. 1858, at 
eleven o'clock A. M., of said day be appointed for hearing said application; and 
that notice be given to all persons interested in said estate to be and appear at that 
time in the Probate Court Room, in the City Hall, in the City and County of San 
Francisco, and show cause, if any they have, why said document should not be ad- 
mitted to Probate as the last Will and Testament of said deceased, and why letters 
testamentary should not be issued thereon to said John Clay, by publication thereof 
twice a week for two weeks previously to 26th day of April, 1858, in the San Fran- 
cisco Herald, a newspaper printed and published in the City and County of San 
§ 13. Francisco, [or, where there is no newspaper printed in the County, by posting no- 
tices in writing in three public places in this County.] 
16. It is Further Ordered, That Subpoenas issue to the subscribing witnesses to said 
14. Will and that Citations be issued and served upon Mary W. Clark and Alexander C. 
Clark, heirs of the testator residing in this City and County to appear and contest 
the Probate of said Will at the time appointed as aforesaid, [and — where necessary, 
§ 15 — that citations issue to the co-executors named in said Will."] 
Dated, San Francisco, April 12th, 1858. 

Let the above order be entered. M. C. Blake, 

County Judge, and Ex Officio, Judge of the Probate Court. 



! 



IsTO- IS. 
CITATION TO HEIRS AND PARTIES INTERESTED IN PROBATE. } 14. 



In the Matter^op the Estate ^ ^.^^ ^^^ ^^^^^^ ^^ g^^ Francisco, 
Henry Clark, Deceased. 



i In Probate court. 



The People of the State of California, 

§ 288. To the Sheriff of the City and County of San Francisco, Greeting : 

By Order of this Court you are hereby required to cite Mary W. Clark, and Alex- 
ander C. Clark, to be and appear in our Probate Court of the City and County of 
San Francisco, at the Court Room thereof at the City Hall in said city and county, 
on Monday, the 26th day of April, 1858, at 11 o'clock A. M., of that day, then 
and there to show cause, if any you have, why a certain instrument in writing pre- 
sented to the said Probate Court, and now on file thereui should not be admitted to 



APPENDIX. Vll 

Sections 

Probate as the last Will and Testament of said -deceased, and why letters testamen- ^(.^ 
tary thereon should not be issued to John Clay, one of the Executors named in said 
Will according to his petition on file, and make due return thereof. § 290. 

Tt o 1 Witness, the Honorable M C. Blake, Judge of our Probate Court, at the 
^^' *•■' City and County of San Francisco, this 12th day of April, A. D. 1868. 

Attest: William Duer, Clerk. § 288. 



ONTO- 13. 
NOTICE FOR PUBLICATION OF TIME FOR PROVING WILL, &c., $13. 

In the Matter op the Ebtatb ^ j^ ^^^ p^^^^^ Court, 

Henry Clark, Deceased. S ^'^^ *^^ ^^^^^ ^^ ^^^ Francisco. 

Pursuant to an Order of this Court made this day, Notice is hereby given. 
That Monday, the twenty-sixth day of April, Anno Domini, 1858, at eleven 
o'clock, A. M., of said day, at the Court Room of this Court, at the City Hall, in 
the City and County of San Francisco, has been appointed for hearing the applica- 
tion of John Clay, praying that a document now on file in this Court, purporting to 
be the last Will and testament of Henry Clark, deceased, be admitted to Probate, 
and that letters testamentary be issued thereon to said John Clay, who is named 
therein as Executor at which time and place all persons interested therein may ap- 
pear and contest the same. 

San Francisco, April 12th, 1858. William Duer, Clerk. 

By D. P. Bellknap, Deputy Clerk. 



3SrO. 14. 

ORDER OF PUBLICATION OF TIME APPOINTED FOR ALLOWANCE OF 
WILL, &c., PROBATED IN ANOTHER STATE OR COUNTRY.— [§ 28.] 

In the Matter op the Estate ^ j^ ^^^ p^^^^^ ^^^^ ^^ ^^^ 

James W. Chever, Deceased. ) ^'^^ ^'^^ ^^^^^^ ^^ ^^ Francisco. 

On reading and filing a document purporting to be an exemplified copy of the last § 28, 
Will and Testament of James W. Chever, deceased, with probate thereof in the 
Commonwealth of Massachusetts. 

And on reading and filing the petition of P. A. Fabens, praying to be appointed § 58. 
Administrator with the Will annexed of said deceased, and that said Will be allow- 
ed as the Will of said deceased and be admitted to Probate in this Court. 

It is hereby Ordered.. That Monday, the 21st day of December next be appointed 
for the hearing of the application of said F. A. Fabens, and that notice thereof be 
given by publication in the Daily California Chronicle, a newspaper published in the 
City and County of San Francisco, twice a week, until the time appointed for hear- 
ing said petition, and that publication be likewise given by posting notices accor- 
ding to law. 

November 30th, 1857. T. W. FREELON, County Judge. 



[anothbe form.] 

3sro. 15. 

ORDER OF PUBLICATION OP TIME APPOINTED FOR ALLOWANCE OP 
WILL, PROBATED IN ANOTHER STATE OR COUNTRY, &c. 

In the Matter op the Estate ) t -n x. x .-i x 

Qp ( In Probate Court, 

Charles L. Case, Deceased. ) ^^^^ »^^ ^^^"^^ ^^ San Francisco. 

On Reading and Filing the Petition of Robert C. Rogers, Public Administrator of 
the City and County of San Francisco, praying for admission to Probate of a docu- 
ment now on file in this Court, purporting to be an authenticated copy of the last 



VIU APPENDIX. 

SectioDA 

^t^ Will and Testament of Charles L. Case, deceased, and of the Probate thereof, as 
admitted to probate in the Surrogate's Court of the County of Orange, in the State of 
New York, and that Letters of Administration, with the Will annexed, be issued to 
him. 

It is by the Court Ordered, That Monday, the first day of February, A. D. 1858, 
at 11 o'clock, A. M. of said day, be appointed for hearing said application ; and 
that notice be given to all persons interested in said estate to be and appear at that 
time in the Probate Court Room, in the City Hall, in the City and County of San 
Francisco, and show cause, if any they have, why the petition of said Rogers be not 
granted, by publication thereof, twice a week, previously to said first day of Februa- 
ry, in the San Francisco Herald, a newspaper printed and published in tbe City and 
County of San Francisco, and by posting notices according to law. 

Dated, San Francisco, January 18th, 1868. 

T. W. F&EELOir, County Judge. 



NOTICE FOR PUBLICATION OF TIME FOR PROVING WILL, &g. ($ 13.) 
In THE Matter OF the Estate ^ j^ ^^^ p^^^ ^^^ 

Charles L. Case. Deceased. S ^'^^ ^""^ ^"""^^^ ^^ ^ Francisco. 



Pursuant to an Order of this Court made this day, Notice is hereby given, 
§18,28. That Monday, the eighth day of January, 1858, at eleven o'clock, A. M., of 
said day, at the court room of this court, at the City Hall, in the city and 
county of San Francisco,liasbeen appointed for hearing the application of Robert 0. 
Rogers, public administrator, praying that a document now on file in this court, 
purporting to be an authenticated copy of the last will and testament of Charles L. 
Case, deceased, as admitted to probate in the Surrogate's Court, Orange county. New 
Tork, be allowed as the will of said deceased, and be admitted to probate, and that 
letters of administration with the will annexed, be issued thereon to the said Robert 
C. Rogers, at which time and place all persons interested therein may appear and 
contest the same, and show cause if they can, why the prayer ot the said Rogers 
should not be granted. 

San Francisco, January 25th, 1858. William Doer, Clerk. 

By D. P. Bblkkap, Deputy Clerk. 



, ^,- State op California, ) 

9 A « . Cjtt and Cotojtt of San Francisco, j ^* 



Robert White, of the city and county of San Francisco, being duly sworn, deposes 
and says, that he is the book-keeper in the office of the printer and publisher of the 
San Francisco Herald, a daily and weekly newspaper, published daily in the city 
and county of San Francisco ; that a notice, of which the annexed is a printed copy, 
has been regularly published in the said paper, at least twice a week, for two weeks, 
conunencing on the 29th day of January, 1858, and ending on the eighth day of 
February, 1858. Robert White. 

Subscribed and bwcmh before me, this 8th day of February, 1858. 
[l. s.] Wm. L. Higoins, Notary Public. 



3sro. 17- 

NOTICE FOR POSTING. (^60.) 

State op California, \ - -D^^r^n*^ p,M,^f 

Citt and County op San Francisco. ] ^^ ^^oDaie uourt. 

§ 60. Notice is hereby given, that Robert C. Rogers, public administrator, having filed 
in this court his petition praying for his appointment of administrator with the will 
annexed, of the estate of Charles L. Case, deceased, the hearing of the same has been 
fixed by said court, for Monday, the eighth day of February, 1858, at eleven o'clock, 
in the forenoon of said day, of the January term of 1858, at the court room thereof 
at the City Hall, in the city and county of San Francisco, and all persons interested 



APPENDIX. IX 

86ct{om 

in said estate are notified then and there to appearand show cause if any they haye. Act. 
why the said petition should not he granted. 
San Francisco, January 25th, 1858. Wiluam DmsB, Clerk. 

By D. P. Bblcnap, Deputy. 

State of Californu, 1 t>.^k«+« r«««^ a at% 

Crrr AND County OF San Francisco, [ Prohate Court. ^62. 

D. P. Belknap, Deputy County Clerk of the city and county aforesaid, heing duly 
sworn, says that on the 26th day of January, A. D. 1858, he posted three notices, of 
which the within is a copy, in three different public places in the city and county of 
San Francisco, one of which was the place at which the court is held, one at the U. 
8. Post Office, and one at the Hall of Records. 

D. P. Beucnaf. 
Subscribed and sworn to before me, this 26th day of January, 1858. 

James B. HcMinn, Deputy County Clerk. 



ITO- 18. 

OBDER REQUIRING A PERSON HAVING POSSESSION OF A WILL TO PRO- 
DUCE IT. {% 10.) 

In the Mapteb of thb Estate ) j^ ^^^ p^^^^^ ^^^ ^^ ^^^ ^^^^ ^^ Monterey, 

JosEFH Ha^ Deceased. ) State of California, (or « In Chambers.^ 120 

It beix^ alleged in the petition of Catharine Hall, widow of Joseph Hall, deceas- 
ed, filed in this court, that a will of said Joseph Hall, is in the possession of one 
William Hall, a brother of deceased, and this court being satisfied [" from the affida- 
vit of Henry Cole, accompanying the same," or " from the oath of the petitioner," 
Of " from the showing made" or as the case may be,] that said allegation is correct, 

It is hereby ordered, that the said William Hall produce the said will and file the 
same^ this court within fire days, [or " forthwith" or such time as the court may 
fix] from this day, and let a copy of this order be served upon said William Hall. 

Monterey, January 4th, 1868. 

W. H. Rdmsey, County Judge. 



3sro- le- 

APPOINTMENT OP ATTORNEY FOR MINOR HEIRS AND PERSONS RE- 
SIDING OUT OP THE COUNTY. (§ 18.) 

In the Matter op the Estate \ j^ p^^^^^ ^^^^ 

Mabcellus Farmer, Deceased. ) ^^^ ^^ ^^'^^y ^^ ^ Francisco. 

Application herein being made to admit to probate the last will and testament of 
said deceased, and it appearing to this court that there are minors and persons re- 
siding out of this county interested in said estate. 

It is hereby ordered that W. B. Fleming, Esq., be and he is hereby appointed the 
attorney to represent said minors and said absent interested parties. 

January 4th, 1858. T. W. Freelon, County Judge. 

Note. — This appointment may be made on presenting the petition for probate, or 
when entering upon the matter of the probate of the will. 



CONSENT OP ATTORNEY FOR MINOR AND ABSENT HEIRS. (§ 18.) 



In the Matter of the Estate 1 In Probate Court, 

OF >- City and County of San Francisco, 

Habceixus Farmer, Deceased. ) January 4th, 1858. 

I, W. B. Fleming, appointed by the court attorney to represent the minor heirs of 
Marcellus Farmer, deceased, and persons interested in said estate residing out of 
the city and county of San Francisco, appear on behalf of said heirs and others in- 

B 



X APPENDIX. 

Seotiou 

Act. terested as aforesaid, and consent that the document purporting to be the last will 
and testament of said deceased heretofore filed, be allowed and recorded herein, 
and be admitted to probate in this court as the last will and testament of the de- 
ceased, and that letters testamentary with said will annexed be issued to Egbert 
Judson and Henry P. Coon, according to the prayer of their petition, 

W. B. Fleming, 
Attorney for minor heirs and persons interested resident out of the county of San 
Francisco. 



3>TO- SI. 

ORDER OF PROBATE OF WILL, WHERE THERE IS NO CONTEST, AND AP- 
POINTMENT OF EXECUTOR. (§ 19.) 



In the Matter of the Estate 

Mabcellus PaZjr, Deceased, f C'*^ •"»* ^"^^ °^ ^an Franciaco. 



1 "\ 

'I In Probate Court, 



The petition of Egbert Judson and Henry P. Coon, heretofore filed in the above 
entitled matter praying for the admission to probate of a document purporting to be 
the last will an^ testament of said deceased, and to be appointed executors of the 
said estate, and that letters testamentary thereon be granted to petitioners this day 
regularly coming on to be heard. 
§ 17J On reading and filing due proofs of the publication of the order to show cause why 
the praj^er of the said petitioners should not be granted as aforesaid, and of the 
notice of the present hearing, and after examining [" Jacob Underbill, one of" 
§ 19] the witnesses produced in behalf of said petitioners whose testimony has been 
reduced to writing and filed, from which it appears that said document is the last 
will and testament of said Marcellus Farmer, deceased, that it was executed in all 
particulars as required by law, and that the testator was of sound mind at the time 
of its execution and W. B. Fleming, the attorney appointed by the court to reptpsent 
the minor heirs and persons residing out of this county, being present ana con- 
senting. 

It is ordered that the paper heretofore filed purporting to be the last will and 
testament of Marcellus Farmer, deceased, be admitted to probate as the last will 
and testament of Marcellus Farmer, deceased, that Egbert Judson and Henry P. 
Coon be and they are hereby appointed [for " appointed " see §§ 47 and 60] execu- 
tors and that letters testamentary thereon issue to the said petitioners without any 
bond being given for the faithful execution of their duties, the bond required by 
§ 77. statute having been waived by the will of said testator [or " upon giving the bonds 
required by law for the faithful execution of the duties of their trust as such exe- 
cutors in the sum of thousand of dollars with sufficient sureties, to be 

approved by the probate judge " or as the case may be, § 73.] 

January 4th, 1858. 

T. W. Freelon, County Judge. 



CERTIFICATE OF PROOF OF WILL. (§ 24.) 
State op California, 



City and County of San Francisco, 



1 



88. 



I, Thomas W. Freelon, county judge of the city and county aforesaid, and ex- 
oflicio judge of the Probate Court thereof, do hereby certify : 

That on the fourth day of January, a. d, 1858, the annexed instrument was ad- 
mitted to probate as the last will and testament of Marcellus Farmer deceased, and 
from the proofs taken [or " from the facts found by the jury," § 24, as the case may 
be] and the examinations had therein, the said court finds as follows : 

That Marcellus Farmer died on or about the 12th day of September, a. d. 1857, 
[in the county of , State of ] that at 

the time of his death he was a resident of the city and county of San Francisco ; 
that the said annexed will was duly executed by the said decedent in his lifetime, 
in the city and county aforesaid, in the presence of J. L. N. Shepard and Jacob 



APPENDIX. XI 

Sections 

Underbill, the subscribing witnesses tbereto ; also that he acknowledged the exe- ^ct. 
cution of the same in their presence and declared the same to be his last will and 
testament, and the said witnesses attested the same at his request in his presence 
and in the presence of each other ; that the said decedent at the time of executing 
said will as aforesaid was of the age of twenty-one years and upwards, was of sound 
and disposing mind and not under restraint, undue influence or fraudulent misrep- 
resentations, nor in any respect incompetent to devise and bequeath his estate. 

In witness whereof I have signed this certificate and caused the same to be attested 
ffl i 1 ^y *^® Clerk of this court, under the seal thereof, this fourth day of Jan- 
l^^^^-J uary, a. d. 1868. 

T. W. Fbeblon, County Judge. 
Attest : William Dueb, Clerk, 



3SrO- S3- 

ORDER OF PROBATE AND CERTIFICATE OF PROOF OF WILL AND TES- 
TIMONY OF WITNESS. (§ 19, 24.) 

In ihe Matter of the last Will and Testament ) In Probate Court, State of California, 

of !- County of San Francisco, 

Charles S. Hathaway, Deceased. ) January 25th, a. d. 1858, 

This day coming on to be heard the petition of Edward F. Stone, praying for the 
admission to probate of a certain instrument in writing heretofore, to wit : on the 
eleventh day of January, in the year of our Lord one thousand eight hundred and 
fifty-eight, with said petition filed in the office of the clerk of this court as the last 
will and testament of Charles S. Hathaway (late of the city and county of San 
I'rancisco) deceased, for the issuance of letters of administration with the will an- 
nexed to George C. Waller, or such other person as the court shall appoint, and 
proof by affidavit being made and filed of the publication of notice as heretofore 
ordered by this court of the time and place set for hearing said petition and taking 
the proofs of said instrument, and one of the subscribing witnesses to said instru- 
ment being present and the testimony of Edward F. Stone, one of the subscribing 
witnesses, having been taken in open court and reduced to writing, and subscribed 
and sworn to by him, and it appearing by proof to the satisfaction of the court that 
A. L. Adams, the other witness, is now and has been for some time past absent from 
the State of California. 

Robert C. Rogers, Esq., who was by the court appointed attorney for the minor 
heirs and persons residing out of the country interested in said estate, having entered 
his appearance with the clerk of this court and being then present, and no person 
appearing to oppose the said petition or the probate of said instrument, and it ap- 
pearing to the satisfaction of the court that the said testator at the time of the exe- 
cution of said instrument was of sound mind and not under restraint or und ue 
influence or fraudulent misrepresentations, and that the said will was duly executed. 

Now it is herebj ordered, that the instrument heretofore referred to and now 
attached to this order or certificate be and the same is hereby admitted to probate, 
and the same is hereby ordered to be, together with the testimony of said Edward 
F. Stone and this certificate recorded by the clerk of this court in the book pro- 
vided for that purpose, entitled " Record of Wills," as the last will and testament of 
Charles S. Hathaway, deceased. 

It appearing by proof to the satisfaction of the court that S. Griffiths Morgan, 
the executor, and Eliza Nye Hathaway, the executrix named in said instrument are 
now and have been for some time past absent from the State of California, and have 
not now any intention of returning to this State, 

Now the court hereby makes, constitutes and appoints George C. Waller admin- 
istrator of the estate of Charles S. Hathaway, deceased ; and it is by the court 
further ordered that letters of administration with the will annexed be issued to 
Geoi-ge C. Waller, on his filing a bond approved by this court in the sum of one 
thousand dollars, conditioned for the faithful performance of his duties. 

In witness whereof I, Thomas W. Freelon, county judge and ex-officio probate judge 
of said county, have in open court this the 26th day of January, a. d. 
[iBAL.] 1858, hereunto set my hand and caused the seal of the Probate Court of 
said county to be affixed. T. W. Fbeblon, County Judge. 

Attest : William Dueb, Clerk, 

By D. P. Belknap, Deputy Clerk. 



Xll APPENDIX. 

SMtions 

let. State of California, ) In the Probate Court, 

County of San Francisco, f January 25th, 1858. 

^ . ' Edward F. Stone, being duly sworn, deposes and says, I reside in the city and cooft- 
ty of San Francisco, am twea^-one years of age and upwards. 

The instrument now shown me marked and filed in the probate court, January 11th, 
1858, purporting to be the last will and testament of said deceased, was signed by 
me as a witness thereto, in the presence of the testator, and at his request, and in the 
presence of the other person whose name is subscribed thereto as a witness, he signed 
the same, as a witness in the presence of the testator, and at his request, and in my 
presence, and in the presence of each other, and the saidCharlesS. Hathaway, signed 
the same in our presence, and then and there declared the same to be his last will and 
testament. 

At the time of making and signing the said instrument, the said Charles S. Hatha- 
way, was of sound and disposing mind, and not under restraint or undue influence or 
fraudulent misrepresentations. 

Mr. A. L. Adams, the other subscribing witness to said instrument, is absent from 
the State of California, and is now a resident of Chelsea, in the State of Massachu- 
setts. The said will was left in my possession by the said Hathaway, when he de- 
parted from this state, on the 20th of April, A. D. 1857, as stated in my petition, for 
the probate of the will, now on file in the probate court. 

EDWARD F. STONK 

Sworn and subscribed before me, in open court, this 25th day of January, 1858. 

D. P. BELKNAP, Deputy County Qerk. 



POINTS OF OPPOSITION TO WILL. (§ 20.) 

State of California, ) t>«^ko+^ n^..,^ 

City and County of San Francisco, f ^^^^^ ^^^^ 

In the Matter of the Estate of Robert Freeman. 

And now comes Mary Freeman, and contests the supposed will now presented to 
this court for probate ; and the said Mary Freeman says, that she is the widow of the 
said Robert Freeman, and interested in tne estate left by the said Robert Freeman. 

1st. And the said Mary Freeman further says : that the said supposed will, now 
offered for probate is not the last will and testament of the said Robert Freeman. 

2d. That at the time of signing said will, said Robert Freeman was not of soood 
mind. 

3d. That said supposed will was not signed b^ the said Robert Freeman, or by any 
person in his prestnce and by his express direction. 

4th. That said supposed will was not attested by two or more competent witnesses 
subscribing their names thereto, in presence of the said Robert Freeman. 

Therefore, the said Mary Freeman prays that probate of the said supposed will 
shall not be granted. MARY FREEMAN. 



CONSENT THAT ISSUES UPON PROBATE OP WILL BE TRIED BY THE 

PROBATE COURT. (^20.) 

In the Matter of the Last Will and Testament ) 

OP f 

Robebt Freeman, Deceased. ) 

A document purporting to be the last will and testament of Robert Free- 
man, deceased, having been presented to this court for probate, and after due publi- 
cation of notice thereof, and issuance and service of proper citations to the proper 
parties, and the matter now coming only regularly to be heard. 

And the widow of said deceased appearing by her attorney, .George G. Barnard, 
Esq., to contest said will, and having filed her statement in writing of the gromids 
of her opposition thereto, wherein and whereby certain issues of fact are joined, af- 
fecting the validity of said will, and which said issues are as follows : 

1st. Was said Robert Freeman of sound mind at the time of the alleged execution 
of said Willi 



APPENDIX. XIU 

2d. Was the said will signed by the said Robert Freeman, or by any person in his ^^^ 
presence and by his express direction 1 

3d. Was the said will attested by two or more competent witnesses subscribing 
their names thereto in the presence of said Robert Freeman 1 

Now, therefore, it is hereby stipulated and agreed by the said contestant, and by 
James Young, the executor named in said will, and the applicant for probate there- 
of, and by H. S. Brown, Esq., the attorney appointed by the Court to represent the 
minor heirs, and persons interested herein residing out of the county of San Fran- 
cisco, that the said issues may be tried and determined by this court, a trial by jury 
and trial in the District Court, being expressly waived, and upon the trial and deter- 
mination of said issues by this court, this court shall proceed to admit said will to 
probate or not according to the facts found by said court upon such trial, and ac- 
cording to the law. 
* San Francisco, January 10, 1857. Geobob G. Barnard, 

Attorney for the contestant, Mart Freeman, widow of deceased. 
James Young, Applicant for Probate. 
H S. Brown, Attorney for minor heirs and absentees, etc. 



NO. ©e. 

ORDER CERTIFYING TO THE DISTRICT COURT FOR TRIAL ISSUES OF 
FACT JOINED ON AN APPLICATION FOR PROBATE OF A WILL IN THE 
PROBATE COURT. (§ 294.) 



In the Matter op the Last Will and Tbstamsnt ) j^ ^^^ ^^^^^^ ^^^ 

OP V. _ _ _ 7 

Robert Freeman, Deceased. 



?^_, T^ ._. ("City and Co. of San Francisco. 



James Young having presented and filed in this court, a document purporting to 
be the last will and testament of Robert Freeman, deceased, in which he is named 
as executor, accompanied with his petition, praying that the same be admitted to 
probate as the last will and testament of said deceased, and the hearing of said ap- § 295. 
plication coming in to be heard on the day of 1857, the day ap- 

pointed by this court therefor, after due notice thereof had been given by publica- 
tion and citation according to the order of this court, and in accordance with the 
provisions of the statute in relation thereto, and Mary Freeman, the widow of said 
■ deceased, having duly appeared by her counsel to contest said will, and having filed § 20. 
her statement in writmg of the grounds of her opposition ; and H. S. Brown, ap- 
pointed by this court as the attorney for the minors, and persons not residing in 
this county interested in the matter, being present and representing such parties, 
and the issues of fact arising upon such contest having been proposed by the seve- 
ral parties and settled by this court ; and the said applicant having made motion in § 295. 
open court that said issues be certified to the District Court of the Fourth Judicial 
District, in and for the city and county of San Francisco, for trial, which said issues 
are in the form and rules following : Issue No. 1, etc., [as in preceding form,] 

Now, therefore, it is hereby ordered, that the above issues of fact be certifind as 
requested, and that the clerk of this court immediately transmit to the District § 301. 
Court of the Fourth Judicial District, in the city and county of San Francisco, the 
the said will or document, and a copy of this order and of the petition of said ap- 
plicant, and of the statement of grounds of opposition of said contestant, for the 
purpose of a trial of such issues of fact and the rendition of a special verdict there- 
on to be certified to this court for its farther action in the premises. 

By the Court. T. W. Freelon, County Judge. 

April 3d, 1857. 

ORDER OF PROBATE OF WILL, WHERE THE SUBSCRIBING WITNESSES 

DO NOT RESIDE IN THE COUNTY. (§ 22.) 

Ln the Matter of the Estate | j^ p^^^^^^ ^^^^ 

Isaac Roberts, Deceased. ) ^'^^ ^^^ ^^^^^^ ^^ ^^^ Francisco. 

The petition of Joseph Scott, heretofore filed in the above entitled matter pray- 
ing for admission to probate of a document purporting to be the last will and testa- 



XIV APPENDIX. 

Bectiooa 

^qJ ® ment of said deceased, and to be appointed executor of the said estate, and that let- 
ters testamentary thereon be granted to said petitioner, this day regularly coming 
on to be heard. 
On reading and filing due proofs of the publication of the order to show cause 

A 17. why the prayer of the said petitioner should not be granted as aforesaid, and of the 
notice of the present hearing, and of service of the citation, issued herein by the 
order of the court ; and after examining the witnesses produced in behalf of said 
petitioner whose testimony has been reduced to writing and filed ; showing the sani- 

X 22 *y ^^ *^® testator at the period of the alleged execution of said will and proving the 
due execution of said will by evidence of the handwriting of said testator and of 
the subscribing witnesses to said will, none of said witnesses residing or being pre- 
sent in this county, and W. W. Wiggins, Esq., the attorney appointed by the court 
to represent the minor heirs and persons residing out of this county, and interested 

} 18. herein, being present and consenting, and no one appearing to oppose. 

It is ordered. That the paper heretofore filed, purporting to be the last will and 
testament of said deceased be admitted to probate as the last will and testament of 
said deceased; that said Joseph Scott, be, and he is hereby appointed execu- 

§ 73. tor of said estate, and that letters testamentary issue to the said petitioner upon his 
giving the bond required by law for the faithful execution of the duties of his trust 
as such executor, in the sum of five thousand dollars. 

ALEXAJSTDER CAMPBELL, 
County Judge, and Ex Officio, Judge of the Probate Court. 



In the matter of the Probate of a paper writing, 
purporting to be the last Will and Testament 

of 

Marie Eranz, deceased, bearing date the 80th 

day of August, A. D. 1854, now on file in the 

office of the Clerk of said Court. 



In Probate Court in and for 
the City and County of San 
Francisco, State of California. 



On reading and filing the petition of William Bossell, duly verified, against the 
probate of a paper writing, purporting to be the last will and testament of Marie 
* Eranz, deceased, the validity thereof, and the competency of the proofs on which 
the same was admitted to probate, On motion of William P. HaUett and S. H. Dwi- 
ndle, of counsel for said William Bossell, 

It is ordered. That a citation issue, directed to Albert James and H. H. Byrne, 
Esq., attorney, appointed by said court to represent the interests of Frederick Ali- 
son, requiring them to show cause before said court, on Monday, the 18th day of 
January, A. D. 1858, at 11 o'clock, A. M., of that day, why the probate of said pa- 
per writing should not be revoked, and the same be declared not to be the last will 
and testament of Marie Eranz, deceased, and not the last will and testament of 
Marie Bossell, deceased; why the letters testamentary issued on said paper 
writing to Albert James, should not be revoked, and the said Albert James 
be compelled to surrender all property in his hands, or imder his control, of which 
the said Marie died possessed, to the said William Bossell, and why the said 
Albert James should not be enjoined from disposing of said property or any 
part thereof, and from executing any sales or acquittances thereof, and why the said 
Albert James should not file a bond as required by law. 

T. W. FREELON, County Judge. 

Dated, January 11th, 1858. 



In the Matter of the Probate of paper writing, 
purporting to be the last Will and Testament f pr^^ate Court, San Fancisco Coun- 

,,.^ J jjxjA 4. o/uv 1 ty, State of California. 

Marie Eranz, deceased, dated August 30th, -'^ 

1854, on file in said court. 

Upon reading and filing the petition of William Bossell duly verified. On mo- 
tion of William P. Hallett and S. H. Dwinelle, of counsel for said Bossell, 

It is ordered, That Albert James, be, and he hereby is enjoined from proceed- 
ing further under the letters testamentary, issued to him by this court, on or about 



APPENDIX. XV 

Sections 

the 30th day of December, 1857, as executor of Marie Kranz, deceased, and that ^ct. 
he desist and abstain from selling or disposing of the property in his possession or 
under his control, of which Marie Kranz or Marie Bossell died possessed, and from 
executing acquittances thereof, until further order of this court. 

And it is also ordered, That the said Albert James show cause, on Monday, 
January 18th, 1868, at 11 o'clock, A. M., why he should not file an inventory of the 
property of which the said Marie died possessed. 

And it is further ordered, That a copy of this order be forthwith served upon the 
said Albert James. 

T. W. FREELON, County Judge. 

Dated, San Francisco, January 11th, 1868. 



3>TO- 30- 
ORDER REVOKING PROBATE OF WILL. (§ 33.) 

In the Matter of the Estate ) j^ p^^^^^^ ^^^^^ 

Marie Kranz, Deceased. ) City and County of San Francisco. 

"William Bossell having filed herein his petition in writing, containing his allega" § 30. 
tions against the validity of the document admitted to probate in this court, on the 
4th day of January, 1858, as the last will and testament of Maria Kranz, deceased, 
for the purpose of contesting the validity of said will, and the probate thereof, and 
praying that the said probate of the said will be revoked, 

And thereupon, the citation of this court being ordered and issued to A. James, the ^ 31 
executor to whom letters of testamentary upon said will were issued, requiring him 
to show cause why the probate of said will should not be revoked, and all other par- 
ties interested being properly cited, and the other necessary and proper orders in the 
premises being made ; and now upon this 25th day of Janusfly, 1858, being the day 
appointed for that purpose, the said matter coming on for hearing, and due proof be- 
ing made of the personal service of the said citations upon the parties therein named, k 32. 
and the said petitioner appearing by W. P. Hallett and S. H. Dwindle, his counsel, . 
and the said A. James, appearing in person, and by S. V. Smith, his counsel, the court 
proceeds to hear the proofs of the parties, and the same being fully heard, and it ap- 
pearing therefrom that the said Maria Kranz, deceased, heretofore in her life-time to- 
wit : in the year 1840, intermarried with the said Bossell, in Germany, that said 
marriage relation was never severed or changed, except by her death, in December, 
1857, that the said will was made by her, unbeknown to, and w^ithout the consent of 
the said William Bossel, her lawful husband, and while they were living separate and 
apart, in the year 1846, and under the pretence, name and circumstances of a single 
woman; 

And it appearing to the court that the same was without any right or authority in 
law, and that the said will is invalid, null and void. 

It is hereby ordered, adjudged and decreed, that the said probate of said will be § 33. 
declared to be, and the same is hereby annulled and revoked, and the letters testa- 
mentary therein issued to the said A. James, are cancelled. 

And it is further ordered. That the fees and expenses of this proceeding, be paid by § 85. 
the said A. James, out of the property of said deceased. 

T. W. FREELON, County Judge. 



3SrO- 31- 

OBJECTIONS TO THE GRANTING OF LETTERS TESTAMENTARY. (§ 34,42.) 

In the Matter of the last Will and Testament ) In the Probate Court of the 

of >• County of Placer, State of 

Jordan Smith, Deceased. ) California. 

Henry A. Mott, duly appointed by this court to represent the interests of minors and x -^q 
absent persons interested in the estate of said deceased, files his objections to the 
granting of letters testamentary to Peter Wyatt, who is named in the will of said de- 
ceased as one of the executors, as follows : 

Ist. That said Peter Wyatt is incompetent to execute the duties of the trust of § 42. 
executor of said will, by reason of improvidence and drunkenness. 



1 



XVI APPENDIX. 

SectionB 

^Act^ 2d. [Or other reasons that may exist as specified in Sec 42.] 

And prays, that upon said will being probated, this Honorable Court will decree, 
that the application of said Peter W^att for letters, testamentary, be denied, and wiU 
make such further order as may be just and necessary in the premises. 

HENRY A. MOTT, Attorney, Ac. 



^TO. 3S3- 

OEDER APPOINTING ADMINISTRATOR DB BONIS NON, WITH THE WILL 
ANNEXED ON THE DEATH OF THE EXECUTOR. ( § 45. ) 

In the Matter of the Estate | j^ p^^^^^ ^^^ 

Henry 0. P^k, Deceased. ) ^'^ "^* ^^^^^ <^' ^"^ Francisco. 

The petition of Ellen Park, widow of said deceased, praying for letters of adminifi- 
tQQ 62 ^^^^^^) ^^ bonis non, with the will annexed, upon the estate of said deceased, coming 
^ ' * on to be heard ; and due proof having been made to this court that the clerk had 
given notice thereof by causing notices to be posted up in at least three public places 
in the city and county, — one of which was at the place where the court is held — skor 
ting the name of the deceased, the name of the applicant, and the term of the court 
at which the application would be heard, the same having been given at least ten 
days before the hearing, and that the notice was in all respects according to law ; 
and it being proved by the oath of the petitioner that John Park, the sole execu- 
tor of said deceased, to whom letters testamentary were issued by the order of this 
court, on the day of 1857, died on the 10th day of February, 1858, leav- 

ing the administration of said estate unclosed and unsettled, and leaving estate of 
said deceased in this city and county, and within the jurisdiction of this court, and 
no person interested inlaid estate appearing to contest the application of the said 
petitioner, and it appearing that said Ellen Park is still unmarried, (§ 44,56,) and 
that the personal property of said estate is worth about $2,500 (} 73.) 
It is oi^ered, that letters of Administration de bonis non, etc., and with the will of 
' said deceased annexed, upon the estate of the said Henry 0. Park, deceased, issae to 
said Ellen Park, upon her taking the oath and filing a bond according to law, in the 
sum of five thousand dollars. 

T. V- FREELON, 
County Judge, and Ex officio, Judge of the Probate Court 
February 26, 1858. 



X<TO. 33. 

LETTERS OF ADMINISTRATION WITH WILL ANNEXED. (§ 60.) 

State of California, City and County of San Francisco. 

The last will of Charles L. Case, deceased, a copy of which is hereto annexed, hav- 
ing been proved and recorded in the probate court of the city and county of Saa 
Francisco, and there being no executor named in the will residing in this state, and 
capable to act, Robert C. Rogers is hereby appointed administrator with the will an- 
nexed. 

Witness : William Duer, clerk of the probate court, of the city and county of 
[seal] San Francisco, with the seal of the court afiSxed, the 12th day of January, A. 

D. 1858. 
By order of the Court. WILLIAM DUER, Clerk. 

§ 72. State of California, City and County of San Francisco. 

I do solenmly swear that I will support the Constitution of the United States and 
the Constitution of the State of CaHfomia ; that I will faithfully discharge the duties 
of administrator with the will annexed of the estate of Charles L. Case, deceased, ac- 
cording to law. ROBERT C. ROGERS. 

Subscribed and sworn to [or ^^ affirmed '' as the case may be] before me, this 12th day 
of January, 1858. 

JAMES B. McMINN, Deputy Clerk of the Probate Court 



app^kn'dix. xvii 

Seetions 
NO- 84i. ^^ 

LETTERS TESTAMENTARY, ft 51.) 

State of Oaliforaia, City and County of San Francisco. 

The last will of Henry Clari^' deceased, a copy of whicb is hereto annexed, hav- 
ing been proved and recorded in the probate court of the city and county of San 
Francisco, John Clay, wlio is named therein, is hei'eby appointed executor. 

Witness : William Duer, clerk of the probate court, of the city and county of 
Nbal] ^an Francisco, with the seal of the court afiOxed, the 26th day of April, A. 
D. 1858. 
By order of the Courts Willum Dder, Clerk. 

State of California, City and County of San Francisco. 

I do solenuily swear that' I will support the Constitution of the United States and , ^^^ 
the Constitution of the States of California ; that I will faithfully discharge the duties ' * ^* 
of executor of the estate of Henry Clark, deceased, according to law. ' 

Subscribed and sworn [or " affirmed " as the case may be] before me, this 26th day 
of April, 1858. John Ciat. 

D. P. Belknap, Deputy Clerk of the Probate Court 



/ 



3SrO, 8CS. 
PETITION FOR LETTERS OF ADMINISTRATION. (^ 58.) 

To the Honorable, the Judge of the Probate Court of the city and county of San 
Francisco: 

The petition of Sarah Mark, widow of said deceased, reapectftdly showeth, thai 
Harris Mark, died in the county of Alameda, State of California, on or abput the 
^d day of January, A. D., 1868. That said deceased, at, or immediately previous . 

to the time of his death, was a. resident of the city and county of San Francisco, ^ ^' 
State of California, and that he has left estate in this city and county, and within 
the jurisdiction of this court. [Vary this paragraph according to the circumstanc- 
es under the provisions of section 2.] 

That due search and inquiry have been made to ascertain if said deceased left any 
will and testament, but none has been found, and according to the best knowledge 
and belief of your petitioner, said deceased died intestate. 

Your petitioner further shows that the estate of said deceased, so far as sh(9 has 
been able to ascertain the same, is of about the value of twenty thousand dollars, 
and consists of as follows : real estate in the city and county of. San Francisco, Of 
the value ol $16,000, or thereabouts; personal estate, stock in trade in the painting 
business — about $3j000; notes, debts etc., about $2,000 ; that the only heirj at law § 73» 
of said deceased, so far as known to your petitioner, are Charles, Sarah, and Mary - 
Ann, minor children of said deceased. 

Wherefore, your petitioner pray, that a day of court may be appointed for hear- 
ing this application, that due notice thereof be given by the clerk by posting no- , -^ 
tices according to law, and that upon said^hearing, and the proofs to be adduced, let- ^ 
ters of administration upon said estate may be issued to your petitioner. And your 
petitioner wiU ever pray, etc 

Sabah Mask. 

Dated January 2$th, 1868. 

State of California, City and County of San Francisco : 88. ' 

Sarah Mark, the above named petitioner, being du^y swonij says that .8h^])]|p 
read the foregoing petition and knows the contents thereof,. ^nd that. the same Jblfxt§ 65* 
la'ue of her own £iowledg^, ^cept los to the matters ibher^n staied to be on ii^cff-iil 
mation or belief, ^nd as to those matters, she believes it to be true. ., . ^^J oi 

. .--. •■ ' : I Sabah Mabk. 97^ 

Subscribed and swtrrn to before me this 26th day of January, 1868. ii9 

B. P. Pbckham, l^btary Public. 



XVUl APPENDIX. 

Seetioni 
Probate 

Act. ig^o^ se. 

State of California, ) j^ t>^^ko*^ n^r,,* 

City and County of San Francisco. J ^^ iToDate tourt. 

Notice is hereby given, that Sarah Mark having filed in this court her petition, 
praying for letters of administration upon the estate of Harris Mark, deceased, the 
hearing of the same has been fixed by this court for Monday, the 8th day of Feb- 
ruary, 1868, at eleven o'clock, in the forenoon of said day of the January [in other 
counties it would be the " Februar}' "] term of 1858, at the court room thereof, at 
the city hall, in the city and county of San Francisco, and all persons interested in 
said estate are notified then, and there, to appear and show cause if any they have, 
why the said petition should not be granted. 

San Francisco, January 25, 1868. 

William ^^eb, Clerl^ 
By Bbhjamiv £. Babc^ck, Deputy. 

For form of "proof of posting," see No. 17. 



3SrO- 37- 
OEDEE APPOINTING ADMINISTRATOE. 
In the Matter of the Estate ) j^ p^^^^^ ^^^^ 

Harris Mark, Deceased. ) City and County of San Francisco. 

The petition of Sarah Mark, widow of said deceased, praying for letters of admin- 
istration upon the estate of said deceased, coming on regularly to be heard ; and 
& 60. ^^® proof having been ^ade to this court that the clerk had given notice thereof 

iQ2, ^or this day, by causing notices to be posted up in at least three public places in the 
53* city and county, — one of which was at the place where the court is held — stating 
the name of the deceased, the name of the applicant, and the term of the court at 
which the application would be heard, the same having been given at least ten days 
before the hearing, and that the notice was in all respects according to law ; and it 
being proved by the oath of the petitioner and of Henry Fuller, that the said Har- 
. ^. ris Mark, died on the 3d day of January, 1858, intestate, in the county of Alameda, 
&^* ^^ ^ state, and that he was a resident of the city and county of San Francisco at 
> * the time of his death, and has left estate in this city and county, and within the 
jurisdiction of this court, and no person interested in said estate appearing to con- 
test the application of the said petitioner, and his personal estate being shown to 
§ 78. be of the value of $5,000, or thereabouts. 

It is ordered, that letters of administration upon the estate of the said Harris 

72. Mark, deceased, issue to said Sarah Mark, upon her takmg the oath and filing a 

73. bond according to law, in the sum of ten thousand dollars. 

T. W. Frbelon, 

County Judge, and Ex officio, Judge of the Probate Court 
February 8, 1858. 



! 



KTO- 88. 
POND OF ADMINISTRATOR OR EXECUTOR. (^ 73.) 

Enow all men by these presents, that we, Sarah Mark, principal, and J. C. Horan 
and Edward Willett, sureties, are held and firmly bound to the State of California 
in the sum of ten thousand dollars, lawful monej of the United States of America, 
to be paid to the State of California, for which payment, well and truly to be made, 
we bind ourselves, our heirs' executors, administrators and assigns, jointly and sev- 
erally, firmly by these presents. 

Sealed with our seals and dated this 8th day of February, 1868. 

The condition of the above obligation is such that whereas the above boundea 
Sarah Mark has been appointed administratrix of the estate of Harris Mark, de- 
ceased, by the order of the Probate Court ot the city and county of San Francisco, 
State of Califomia, of this date. 



APPENDIX. XIX 

Sectioni 

Now therefore, if the said Sarah Mark shall faithfully execute the duties of her ^^t.** 
trust according to the law, then this obligation to be void, Otherwise to remain in 
full force and eflfect. 



Sealed and delivered in the presence of ) Sabah Mark. 

S. L. LuPTOir. ) J. G. Hoban, 

Edwabd Willktt, 



Seal 
Seal. 
Seal. 



State of California, City and County of San Francisco, ss. 

J. C. Horan and Edward Willett being duly sworn each for himself says that he 
is a freeholder resident in this State, and is worth the said sum of ten thousand dol- 
lars over and above all his just debts and liabilities, exclusive of property exempt 
from execution. 
Sworn before me, this 8th day of February, 1868. ) J. C. Hoban, 

S. L. LuPTON, Deputy Clerk. ) Edwabd Willett. 

(Indorsement.) Approved this 8th day of February, 1858. 

T. W. Fbeeloit, County Judge. 



3SrO- 39- 

PETITION OP PUBLIC ADMINISTRATOR FOR LETTERS OF ADMINIS- 
TRATION. (^68.) 

To Hon. T. W. Freelon, Judge of the Probate Court for the city and county or San 
Francisco : 

The petition of the undersigned, public administrator of said city and county, 
represents that Isaac Levick. who was at and immediately preceding the time of his 
death resident of the city and county aforesaid, departed from the State of Califor- 
nia for the city of New York and State of New York on the 20th day of August, 
A. D. 1867, that said Levick, on or about the day of September, 1867, left the 
port of Aspinwall, New Grenada, for said city of New York on board a steamship 
called the " Central America," that said steamship " Central America," on said 
voyage from Aspinvjjall as aforesaid, did, on or about the 12th day of September, 
A. D. 1867, founder or was sunk at sea. and that by said accident to, or sinking of 
said steamship the said Levick perished by drowning. 

He further says that said deceased died intestate and has left within the State of 
California no heirs or relative entitled by law to apply for and receive letters of ad- 
ministration on said estate, and that said deceased has left valuable real and per- 
sonal property situated and being in the said city and county of San Francisco. 

Wherefore your petitioner prays that, by reason of the above recited facts, and the 
jaw in such case made and provided, letters of administration on said estate may be 
issued to bin*. And he will ever pray. 

RoBT. C. RooEBS, Public Administrator. 

San Praiicisco, November 9th, 1867. 



REMONSTRANCE AGAINST ISSUANCE OP LETTERS. (§ 61, 62.) 

To the Honorable T. W. Freelon, Probate Judge: 

Thomas Trounce, who holds a power of attorney from Isaac Levick, and has 
charge of all his business in San Francisco, and is a creditor of said Levick, feels it 
due to his friend to protest against granting administration on the estate of said 
Isaac Levick at the present time. 

It is true that the said Levick left San Francisco on the 20th of August, intending 
to go through to New York, and if he did not change his mind he was on the ill-fated 
** Central America." Nothing has been heard of him since leaving San Francisco 
by his friends here, and it may be that he is lost, but it is respectfully submitted 
that there is neither evidence nor legal presumption of his death at present. He may 
not have sailed on the " Central America," or if on her he may have been saved and 
not yet heard from. If taken up by an outward bound vessel to Australia, to the 
East Indies, or even to California, it would not be known, unless that vessel had 



§76. 



XX AP,P&NPLX. 

SeetioDA 

^''jj^ fallen in with some inward bound yessel within a. few days after the accident apd 
put him on board. «' 

His business is not suffering and is placed in hands satisfactoiy to the owner, 
when he expected to be long absent, and his agent believes that it should so remain, 
without the expense of au administration, until we can hear from foreign ports. 
He would suggest that no action should be taken for at least six months. 

The undersigned is informed and believes that the presumption of law is in favor 
of life, and that mere absence without being heard from must continue for seven 
years to rebut that presumption, and he is unable to see, in the absence of proof, 
that said Levick was on the ** Central America," or if on her that he was not saved 
where many others were saved, how the legal presumption that he still lives is re- 
butted. 

He thereiore hopes that a reasonable time to hear from other places will be al- 
lowed before administering on his estate. Thos. Trovitce. 



XTO. 41. 
ORDER FOR LETTERS AFTER OPPOSITION. (§ 62.) 

^C^l^^^Of&A^FRAXcmo. } I^ Probate Court. 

In the Matter of the Estate } 

of > Order Appointing Administrator. 

Isaac Levick. ) 

The petition of Robert C. Rogers, public administrator, praying for letteiv of ad- 
ministration upon the estate of said deceased, coming on to be heard, and due pnx^ 
having been made to this Court that the Clerk had given notice thereof by causing 
notices to bo posted up in at least three public places in the city and couoiy, one of 
which was at the place where the court was held, stating the name of the deoeased, 
the name of the applicant and the term of the court at which the implication would 
be heard, the same having been given at least ten days before the hearing, and that 
the notice was in all respects according to law ; and the hearing of the samye having 
been diily continued to this day, and it being proved by the oath of the petitioner 
and of 8. Hubbard and A. C. Forbes that the said Isaac Levick died on or about 
the 12th day of September, 1857, at sea, and that he was a resident of the city and 
county of San Francisco at the time of his death, apd has left estate in this city and 
county, and within the jurisdiction of this court ; and Thomas Trounce, a person 
interested in said estate appearing to contest the application of the said petitioner, 
having been heard, and it appearing to the satisfaction of the court that Uie allega- 
tions in the petition of the isaid Rogers are tnie : 

It is ordered that the said Robert C. Rogers be and he is hereby appointed admin- 
istrator of the estate of the said Isaac Levick, deceased, and it is ordered that letters 
of administration upon the estate of the said deceased issue to the said Rogers, tiie 
public administrator^ 

T. W. Fbeelon, County Judge. 



N-O- 41- (A.) 

State op Caltpornu, ) t>*«ko+^ n^n.^ 

City AND CoDNTY OF San Francjisoo, [ iTobate uourt. 

In the Matter of the Estate ) 

of [ 

John C Ca^aniss, deceased.) 

And now this thirty-first day of May, in the year of our Lord one thousand eight 
liundred and fifty-eight, at the May term of the Probate Court for the city ai^d 
•county of San Francisco, begun and holden at the City Hall in said city and county 
on the third Monday of May, to wit : on the seventeenth day of May, in the year 
aforesaid ; the petition of Robert C. Rogers, public administrator of, in and for the 
<5ity and county of San Francisco aforesaid, praying for letters of administration on 
the estate of John 0. Cabaniss, late of San Francisco deceased, to be issued to him, 
and the written opposition thereto Cf Moses G. Noble, and also the petition of said 



APPENDIX. XXI 

Se«tioiui 

Noble, praying lor letters of administration to be issued to himself on said estate, ^'^^ 
coming on to be heard at the same time ; and it appearing to the court that due 
proof by affidavit on file had been made, that notice had been given of both said 
petitions according to law, and legal proofs having been made of all the allegations 
contained in said petition of said Robert C. Rogers, public administrator, as afore- 
said ; and the allegations and proofs of the opponent and petitioner Noble having 
been heard and fully considered by the court at the different sessions of said court, 
held for the hearing thereof as well as other matters. 

Jt is therefore ordered and decreed that the petition of said Moses G. Noble pray- 
ing -for letters of administration on the estate of said John C. Gabaniss, deceased, be 
denied, and the same is hereby denied and the opposition of said Noble to the peti- 
tion of said Rogers, public administrator as aforesaid, be and the same is hereby 
overruled. 

And it is hereby further ordered, a<^udged and decreed that letters of adminis- 
tration on the estate of said John C. Gabaniss, deceased, be issued to the petitioner 
Robert G. Rogers, public administrator of the said city and county of San Francisco. 

jif. C.^LAJLE, County Judge. 



PETITION FOR 'LETTERS DE BONIS NON, ON DEATH OP FORMER AD- 
MINISTRATOR. ($68,97.) 

Probate Court, City fsind County of San Francisco: m. 
In the Matterj)f the Estate j^ ^i^ andCounty of 



James MoBDtire, Deceased ' San FnuMjiaco. 



To the Honorable the Judge of the Probate Court of the city and county of San 
Francisco. 

The petition of Patrick McEntire, of said city and county, respectfully shows, 
that James McEntire, late of said city and county, died intestate in said city and 
county, on the 24th day of September, A. D., 1857. 

That said deceased, at the time of his death, was possessed of real estate in said 
city and county of the value of two hundred and fifty dollars, and personal property 
of the value of eight hundred and twenty-five dollars. 

That said deceased left as heirs to his estate, a mother, Jane McEntire, residing 
in Ireland, in the Kingdom of Qreat Britain, and two brothers, in this state, one of 
whom, John McEntire, has since died, leaving no widow nor children, and your 
petitioner, who is the only surviving brother, and left no other heirs. 

That said John McEntire, by his petition, filed in this court, on the 6th day of 
October, 1857, applied for letters of administration to himself upon said estate. 
That, on the 19th day of the same October, upon hearing the said application, this 
court ordered, that letters of administration as asked for in said petition, issue to 
the said John, and that on the 18th day of December, 1857, letters of administra- 
tion upon the said estate were duly issued to the said John McEntire ; that on the 
21st day of said December, appraisers upon the said estate were duly appointed by 
this court ; and on the same day, the notice to creditors of said estate to prove their 
claims was ordered to be published in the San Francisco Herald, twice a week, for 
four weeks ; that on the 28th day of January, 1858, an inventory of said estate, 
with the appraisement of said appraisers, was duly filed in this court, showing the 
total value of said estate to be ten hundred and seventy-five dollars. 

And your petitioner further shows, that the said John McEntire, administrator as 
aforesaid, upon the said estate, died on the 28th day of February, last past, in said 
city and county, leaving said estate unadministered upon, except as above stated. 

Therefore, your petitioner prays, that letters of administration de bonis non upon 
the said estate of James McEatire, deceased, may be granted to him in pursuance 
of the statute in such case made and provided. 

Jambs McEntibb. 

Dated, San Francisco, March 9th, A. D., 1858. 



XXll APPENDIX. 

SeetioDB 

Act. 3SrO- 48 _ 

OEDER FOB LETTERS ON SAME. (62,97.) 

In the Matter of the Estate ^ p^^^^^^ ^^^^ 

James McEntire, Deceased. ) ^'^^ ^^^ ^^^'^ ^^ ^^'^ Francisco. 

The petition of Patrick McEntire, filed in this court on the 9th day of March, 
1858, praying for letters of administration de bonis non upon the estate of said de- 
ceased, coming on to be heard on this 22d day of March, 1858, the time duly ap- 
pointed for the hearing of the application made by said petition, and due proof 
having been made to this court that the clerk had given notice thereof by causing 
notices to be posted up in at least three public places in the said city and county, 
one of which was at the place where the court is held, stating the name of the de- 
ceased, the name of the applicant, and the term of the court at which the applica- 
tion would be heard^ the same having been given at least ten days before the hearing, 
and that the notice was in all respects according to law, and no person interested in 
said estate appearing to contest the application of the said petitioner, the court 
proceeded to hear his allegations and proofs, and it being duly proved that the ma- 
terial facts set forth in said petition were true, and especially, that John McEntire, 
the former administrator of said estate died in said city and county on the 28th 
day of February, A. D., 1858, leaving said estate unadministered upon, except as 
set forth in said petition. 

Now, on this 22d day of March, 1858, it is hereby ordered, that letters of admin- 
istration de bonis non upon the estate of the said James McEntire, deceased, issue 
to the said Patrick McEntire, upon his taking the oath prescribed by law, and filing 
a bond according to law in the sum of two thousand dollars. 

T. W. Frbelok, 
County Judge, and Ex Officio, Judge of the Probate Court. 



^67. 



XTO. 44- 

PETITION FOR REVOCATION OF LETTERS OP ADMINISTRATION AND 
ISSUANCE OF LETTERS TO PETITIONER. (J 67,70.) 

To the Probate Court of the County of San Diego. 

The petition of Vicente Cesefla, respectfully showeth, that he is the son of Do- 
mingo Cesefia, deceased. 

That administration upon the estate of said deceased, was, by the order of this 
court, on the day of Janu iry, 1856, granted to the public administrator of 

§ 64. this county, no one then appearing to oppose his application for said administration. 

That your petitioner, after an absence of one year, has lately returned to this 
county and state, and desires that the administration granted as aforesaid to said 
public administrator, may be vacated, and his letters revoked, and that letters of 
^66. administration maybe issued to your petitioner, and to John Phoenix, Esq., a 
resident of this county, whom your petitioner prays may be joined with him in the 
administration of said estate. And your petitioner will ever pray, etc. 

VlCElTTB CeBKSJL, 

May 1, 1856. 

I, Maria Cesefia, widow of said deceased, unite in the foregoing petition, relm- 
quishing my right of administration in favor of my son, the said Vicente. 

Maria. CeseSTa. 
May 1, 1856. 

I, John Phoenix, editor and proprietor of the San Diego Herald, agree to accept 
y^8. ^Q joint administration of the estate of Domingo Cesefia, deceased, and unite with 
said Vicente in his above petition. 

John Ph(eniz. 
May 1, 1856. 



APPENDIX. XXUl 

SectfoDB 

I^O- •*«- Act. 

ORDER FOR CITATION AND SPECIAL TERM, (§ 68.) 

In the Matter of the Estate 1 p^^i^^j^ ^ourt of the 
Domingo Ce^efla, deceased. ) <'"'»'"y °^ ^ ^'««°- 

On reading and filing the petition of Vicente Cesefla, praying for a revocation of 
the administration heretofore granted herein to the public administrator, and the 
issuance of letters of administration to him and to John Phoenix^ 

It is hereby ordered that, Monday, the day of May, 1856, be appointed a Spe- & 68. 
cial Term for the hearing of said petition,'and that a citation be issued by the Clerk 
of this court to the said public administrator, to appear and answer said petition on 
the said day of May, 1856, at 10 o'clock in the forenoon, and that the clerk post 
the usual notices of this application for letters of administration according to law. x 50. 

May 1st, 1856. M. N., Probate Judge. 



aTATION. (^68,288.) 
In the Matter of the Estate ^ p^^^^^ ^^^^ 

Domingo Cesdia, deceased. J ^^^^^ ^^ ^"^ ^^^g^' 

The People of the State of California to the Sheriff of the county of San Diego, 
greeting : 

By order of this court you are hereby required to cite A. B., public administrator 
of said county, to appear before this Court at the court room thereof, at the Court 
House in the city and county of San Diego, at a special term of the court, to be held 
on Monday, the day of May, 1856, at 10 o'clock in the forenoon of that day, 
then and there to answer the petition of Vicente Cesefia, this day filed herein, ask- 
ing for the revocation of the letters of administration granted to said public admin- 
istrator upon this estate, and the issuing of letters of administration to said petitioner 
and John Phoenix, and make due I'eturn of this writ. (^ 289, 290.) 

Witness, the Honorable C. D., Judge ex officio of our Probate Court, in and for the 
r _ _ county of San Diego, with the seal of said court affixed, this Ist 

,AlAtJ2o!i day of May, A. D. 1856. } 288, 

PBOBATE COURT.] ^^^^^ . j. p ^ ^j^^j^ 

RETURN OF THE FOREGOING CITATION. (^ 289, 290.) 

I, G. H., Sheriff of the county of San Diego, certify that I served the within cita- 
tion on A. B., the public administrator of said county, by delivering to him person- 
ally a copy thereof duly certified, on the 2d day of May, A. D. 1866, at the city of 
San Diego, in the county of San Diego aforesaid. 

Dated San Diego, May 2d, 1856. G. H., Sheriff of San Diego county. 

By J. K., Deputy. 



OBDER REVOKING LETTERS OF PUBLIC ADMINISTRATOR AND GRANT- 
ING LETTERS TO THE APPLICANT. (J 69.) 

[Title, etc. as in foregoing.] 

Application having been duly made to this court to remove A. B., the public ad- 
ministrator of this county, from the administration of this estate, and to grant 1 ^<j 
administration to Vicente Cesefia, the son of said deceased, and to John Phoenix, i gg' 
as CO* administrator with said Vicente Cesefia, by petition of said Vicente Cesefia, ' 
duly filed herein, and in which petition Maria Cesefia, the widow of deceased, and 
said John Phoenix join. 

Now, at this day, which has been appointed by this court, a special term for that t ao 
purpose, the said application coming on to be heard, and the citation issued under ' 



XXiv APPEI*01X. 

Seetfama 

^cx, ^^® order of this court to said administrator; being returned and filed with due 

. * proof of legal service, and the proceedings being in due form, and the parties ap- 

\ (^ pearing, the court proceeds to hear the proofs and allegations of the parties, and it 

I an appearing to the court therefrom, that the matters alleged in said petition are true, 

r /o r; and that the said Vicente Ceseila and John Phoenix are competent to act as admin- 

diio is^i^tors, and the right of said applicant being established. And it further appear- 

y ^' ing to this court, that administration of this estate has been heretofore regularly 

dfi2 g^^Q^<l ^o^- ^M the public administrator of this county; and due proof having 

y **• been made to the court and filed herein, that the clerk has given notice of this api- 

plication for the issuance of letters of administration according to law, by posting 

^60. ^P notices in three ^public places in this county, one of which was the place at 

^ ' which this court is held, at least ten days before this hearing, stating the name of 

the deceased, the name of the applicant, and the term (to wit : the special term 

appointed for the purpose) of the court at which the application would be heard. 

It is hereby ordered, that the letters heretofore granted to said A. B., public ad- 

^ 69. ministrator, be, and the same are hereby revoked, and that letters of administration 

^72,73. be granted to said Vicente Cesefla and John Phoenix, upon their taking the oath 

required by law, and filing separate (( 74) bonds with sufficient guaranties to bo 

approved by the court, in the sum of five thousand dollars each. 

M. N.J County Judge. 

ITO- 48. 
LETTERS OF ADMINISTRATION. ($71.) 

State of California, City and County of San Francises. 

Sarah Mark, is hereby appointed Administratrix of the estaite of Harris Mark, 
deceased. 

Witness : William Duer, clerk of the probate court, with the seal of the Pro- 
[beal] bate court of San Francisco county, affixed this 8th day of February, A. 
D., 1868. 

By order of court, William Duke, Clerk. 

State of California, City and County of San Francisco. 

I do solemnly swear, that I will support the Constitution of the United States and 
the Constitution of the State ot California; that I will faithftilly dischargre the 
duties of Administratrix of the estate of Harris Mark, deceased, according to law. 

Sabah Mabx. 
Subscribed and sworn [or " affirmed," as the case may be] before me, this 8th 
day of February, 1868. 
J 72. T, Yf^ Fbeblon, Judge of the Probate Court 



PETITION FOR FURTHER SECURITY WHERE SURETIES OF ADMINIS- 
TRATOR ARE INSUFFICIENT. (§ 78, 87.) 

In the Matter of the Estate) j^ p^^^^^ ^^^^^ 

Charleys Dais. ) ^'^^ *"* ^^^'^^'^ ^^ ^^ Francisco. 

i 78. Robert Jones comes and represents to and petitions the Probate Court respect- 
fWly as follows : 

That James McCull and Simon Brown, the sureties upon the administrator's bond 
of William Dais, the administrator [or executof, as the case may be] herein are in- 
solvent, as appears by their petitions in insolvency, respectively filed in the district 
court of this district [or " are becoming insolvent," state the facts, or other cause, 
as set forth in section 78] and that the said bond is insufficient. That your peti- 
tioner is interested in said estate, being a creditor thereof. Your petftioner would 
also represent that said administrator is wasting the property of said estate, as 
is shown by the affidavit of A. B., hereto annexed and made a part of this petition. 

Wherefore your petitioner prays that a citation may issue to said adrntnistrator, 
requiring him to appear and show cause why he should not give further security, 
and that in the mean time bis powers as such administrator be suspended. [} 82, 
see also f 281 to §286.] 

[Sworn to as in No. 86.] Robebt Jobb0. 



}78. 



}79. 



APPENDIX. XXV 

SeetlonB 

Probate 

ITO- 60- Act.- 

ORDER FOR CITATION ON THE ABOVE. (^ 79.) 

[Title etc., as above.] 

Application having been made to me for the requirement of farther sectuity Arom 
the administrator of this estate [or^ ^ 83, without any application ** it coming to 
my knowledge, etc."] on the allegation that the sureties upon his bond have become 
insolvent, and being satisfied that the matter requires investigation : It is hereby § 79. 
ordered, that a citation issue to the said administrator, requiring him to appear 
before me, at my chambers, on the 10th day of May, 1867, at 10 o'clock, A. M., to § 87, 
show cause why he should not give further security ; And it being alleged on the 
oath of A. B., whose affidavit is annexed to said petition, that said administrator is 
wasting the property of said estate : It is ordered, that the powers of said admin- } 82. 
istrator be suspended until the matter can be heard and determined. 

T. W. FreeloNi County Judge. 

Dated, May 5, 1867. 



CITATION. (}79,288.) 
In the Matter of the Estate ^ j^ p^^^^^ C^^^^. 

Charles Dais, Deceased. ) ^'^^ ^^ ^^^^^ ^^ ^^ Francisco. 

The People of the State of California, to the Sheriff of the City and County of San 
Francisco, greeting : 

By order of this court, you are hereby required to cite William Dais, adminis- 
trator of the estate of Charles Dais, deceased, to appear before the Probate Judge 
of the city and county of San Francisco, at his chambers, at the city hall, in the 
city and county of San Francisco, on the 10th day of May, 1867, at 10 o'clock, in 
the forenoon of that day, then and there to show cause why the sureties upon his 
administrator's bond [oTj " his bond given on an order to seli real estate," or other 
bond, as the case may be] should not be declared to be insufficient, and why he 
should not give further security, and why his letters of administration should not 
be revoked, for reason of having wasted the property of said estate, (( 283,) and 
make due return hereof. (^ 289, 290.) 

Witness, the Hon. T. W. Freelon, Judge ex officio of our probate court, in 
[seal.] and for the city and county of San Francisco, with the seal of said court 

affixed, this 6th day of May, A. D., 1867. 

Attest: Thomas Hayes, Clerk, 

By Denis Lyons, Deputy Clerk. 



3sro. es- 

ORDER ON THE FOREGOING APPLICATION, THAT NEW SECURITY BE. 

GIVEN. (J 80, 81.) 
[Title etc., as above.] 

The citation ordered herein, on the 5th day of May, 1857, having been duly 
served and returned, and the said William Dais, administrator etc., having this- day 
appeared before me, at the time and place named in said citation, and it being- 
shown to me, that one of the sureties of said administrator, the said Simon Brown, 
is solvent, and amply sufficient ; the said Simon Brown, who has filed his applica- 
tion in insolvency, being another person of the same name ; and it appearing to me 
that the said James McCull, the other surety, is insolvent ; and it further appearing 
to me. after a full hearing of the proofs and allegations of the parties, that said 
administrator is not wasting, nor has he been wasting the property of said estate; 
the order of the 5th May, instant, suspending the powers of said administrator, is 
vacated, and he is fully restored to the exercise of said powers, and it is hereby 
ordered, that the said administrator give further security, in the sum specified in 
the bond already given, in the place of the said James McCull, to be approved by 
me, within five days, or that his letters of administration be revoked. 

May 10th, 1868. 

T. W. FbeeloiT) County Judge. 

D 



XXVl APPENDIX. 



Seotioiu 

Probat* 
Aet. 



ORDER REVOKINa LETTERS IN THE SAME MATTER. ($ 81.) 



[Title etc., as above.] 

Order having been made herein by me, on the 10th day of May, instant, that 
William Dais, the administrator herein, give farther security upon his bond as ad- 
ministrator, in the place of James McCuU, within five days from that date, and no 
further security having been given, and the five days having elapsed, it is hereby 
§ '^^^ ordered, that the letters of administration of said William Dais, be, and they are 
hereby revoked, and his authority thereon terminated. 
May 16th, 1858. 

T. W. Fbeelon, County Judge. 



XTO- 64. 

ORDER RELEASma SURETT ON HIS REQUEST. (§ 84 to § 86.) 
In the Matter of the Estate ^ p^^^^^^^ ^^^^ 
James H. Wii^ate, deceased. ) January 4, 1868. 



Helena Wingate, administratrix of said estate, having been cited to appear before 
this court, by an order entered on the 24th day of December last, to show cause 
why Frank T. Maynard, one of the sureties on her ofiScial bond should not be re- 
leased A:om all farther liability as such bondsman ; and the said Helena Wingate, as 
administratrix, having this day appeared in obedience to said order, and filed anew 
bond, conditioned, for the faithful discharge of her duties as administratrix in lieu 
of her former one, which said bond has been this day approved by me : It is here- 
by ordered, that the said Frank T. Maynard, be, and he is hereby fully discharged 
A'om all future liability for the future acts of the said Helena Wingate, as adminis- 
tratrix of the said estate. 

T. W. FsEELOK, County Judge. 



ITO- 66- 

ORDER ON APPLICATION OF SURETY, THAT NEW BOND BE GIVEN. 

({ 84 to 86.) 

In the Matter of the Estate of J. Willardl 
Barker, deceased, on the application of 
Henry Pierce to be discharged A'om 
liability on the bond of James Thomp- 
son, executor. 

This day, came on to be heard, the application of Henry Pierce, one of the sureties 
on the bond of James Thompson, as executor of J. Willard Barker, deceased, to be 
released from all liability on said bond for any future act, default, or misconduct of 
said executor, and it being shown to the court that a citation has been duly issued 
according to the former o^er of the court requiring the said Thompson to appear 
on Monday ; the 1st day of March, 1868, at 11 o'clock, A. M., and give new securi- 
ties to the satisfaction of the Judge on his, the said Thompson's bond as executor 
as aforesaid, and that said citation was duly served on said Thompson on the 12th 
day of February, 1868 ; and it appearing also, that a statement in writing has been 
filed, setting forth the desire of said surety, Heury Pierce, to be relieved from all 
liability on said bond thereafter arising, and the reasons therefor, which statement 
is subscribed and verified by the afiSdavit of said Pierce, and that said statement, 
together with the order of the court, was duly served on said Thompton on the 12th 
day of February, 1868, more than ten days before the time appointed for the hear- 
ing of this application, and that the said Thompson appearing by counsel, the hear- 
ing thereof has been regularly continued to this day by consent. It is now ordered, 
that within five days from this date, the said James Thompson do give new sureties 
pn his said bond, as executor, to the satisfaction of the judge} and that on his 



• • 



APPENDIX. XXVU 

SMttont 

Ihilnre so to do, his letters testamentary be reroked ; and it is fhrtber ordered, that Act. 
this application be continued to Monday, the 22d day of March, inst., for the farther 
order of the court herein* 

T. W. Fbbiuw, County Judge. 



3sro- ee. 

OBDEB REVOEINa LETTERS FOB FAILURE TO GIVE NEW BOND. ({ 84 to 86.) 

In the Matter of the Estatel j„ ^^ ^^^^ Court 

X Wllhrd BMker, Deceued. ) »' *« ^ity and County of San Franctaco. 

James Thompson, executor of the last will and testament of J. Willard Barker, 
deceased, having neglected to give new sureties, to the satisfaction of the judge, on 
his bond as executor, as aforesaid, within the time prescribed by the order of this 
court of the 15th of March inst., it is now ordered, that the letters testamentary of 
the estate of said Barker, deceased, heretofore issued to said Thompson by this 
court, be, and the same are hereby revoked. 

San Francisco, March 22d, 1868. 

T. W, Fbbblon, County Judge. 



3sro. C7. 

ORDER FOR SPECIAL LETTERS. (§ 89.) 



In the Matter of the Estate 1 In the Probate Court, 

of > City and County of Ban Francisco. 

Hamilton Bowie. Deceased. ) State of California. 



It appearing to me, upon the petition of Mrs. Mary Bowie, widow of the said 
Hamilton Bowie, deceased, that said deceased departed this life on or about the 
twenty-first day of September, A. D. eighteen hundred and fifty-six, in the Repub* 
He of Nicaragua, Central America, and that he was at tbe time of his death a resi- 
dent of the said city and county of San Francisco, and that he died intestate, leaving 
property and estate in said city and county, and that said petitioner is the widow of 
■aid deceased, and prays general letters of administration on said estate, and in the 
mean time special administration thereon ; and the said allegations in said petition 
appearing to be true by witness, and it likewise appearing that there has been delay 
in taking out letters of administration on said estate, it is ordered that Monday, the 
10th day of May, 1858, be appointed for the hearing of said application for general 
letters of administration upon said estate, and that until such general letters be 
granted that said Mary Bowie be appointed special administratrix of said estate, 
with full power and authority to collect and take charge of the estate of the de* 
ceased, in whatever county or counties the same may be found, and to exercise such 
other powers as may be necessary for the preservation of said estate and that letters 
as such special administratrix shall issue to said Mary Bowio, on giving bond in the 
sum of seven thousand dollars, with sureties to the satisfkction of the undersigned 
probate judge. 
- 8an Franciseo. April 24th, 1858. M. C. Blakb, County Judge. 



3SrO, B8. 

LETTERS OF SPECIAL ADMINISTRATION. (§ 71, 89.) 

State op California, ) t^ t>w.i^«*^ n^„^ 

City and County of San Francisco, f "* Frobate Court. 

Mary Bowie is hereby, in accordance with the order of the probate judge, ap- 
pointed special administratrix of the estate of Hamilton Bowie, deceased, until gen- 
eral letters be granted, with tuW power and authority to collect and take charge of 
the estate of said deceased, in whatever county or counties the same may be founds 



XXVUl APPENDIX. 

StetioM 

^^1* and to exercise such other powers as may be necessary for the preservation of the 
estate. 

Witness, William Duer, Clerk of the Probate Court of the city and county 
[SBAii.] of San Francisco, with the seal of said court affixed, this 24th day of 

April. A. D. 1868. 
By order of tSie Court: William Dvbb, Clerk. 

By B. P. Bblknap, Deputy Clerk. 

State of California, City and County of San Francisco, 88. 

I do solemnly swear that I will support the Constitution of the United States and 
the Constitution of the State of California ; that I will faithfully discharge the duties 
of special administratrix of the estate of Hamilton Bowie deceased, according to 
law. M. BowiB. 

Subscribed and sworn to before me, this 26th day of April, 1858, 

D. P. Belknap, Deputy County Clerk. 



ORDER FOR PROBATE OF A WILL SUBSEQUENTLY FOUND AFTER 
ADMINISTRATION HAS BEEN GRANTED, AND FOR REVOCATION OF 
SUCH ADMINISTRATION. (§ 98, 99.) 

State of California, } -o^^v^^^ n^„^ 

City and County of San Francisco, f ^^^^ ^^' 



In the Matter of the Estate 

of V Order of Probate. 

J. Caleb Smith, Deceased. 



ite^ 

I. i 



The petition of Austin £. Smith, heretofore filed in the above entitled matter, 
praying for the admission to probate of a document purporting to be an authenti- 
cated copy of the last will and testament of said deceased, and to be appointed 
executor of the said estate, and that letters testamentary therein be granted to said 
petitioner, this day regularly coming on to be heard. 
A yj On reading and filing due proof, of the publication of the order to show why the 
/ 28.* P^^y^^ o^ ^^® ^^ petitioner should not be granted as aforesaid, and of the notice of 
' the present hearing ; and it appearing to the court that the will of said deceased has 
A 27, been duly proved and allowed in the State of Virginia, that the said testator at the 
' time of his death was a resident of the city of San Francisco, and has left estate in 
this city and county, and that said will has been executed in conformity with the 
laws of the State of California, and it therefore appearing that the instrument ought 
to be allowed as the will of the said deceased, and that the said copy and the pro- 
^ 18. ^^^ thereof are duly authenticated, and R. H. Lloyd, Esq., the attorney appointed 
by the court to represent the absent heirs and persons interested resident out of this 
city and county being present and consenting thereto, and no one appearing to op- 
pose; 

And it further appearing that the said Austin E. Smith was duly appointed the 
administrator of the said estate by an order of this court, dated the 22d day of Oc- 
tober, 1856, and that the said will has been discovered and duly proved and allowed 
as aforesaid, since the granting of said order. 

It is now, this fifteenth day of March, 1858, ordered, adjudged and decreed, that 
the said will be allowed and recorded as an authenticated copy of the last will 
and testament of J. Caleb Smith, deceased, and that said will have the same force 
and efiect as if it had been originally proved and recorded in this court ; it is far- 
ther ordered, that the said Austin E. Smith be, and he is hereby appointed, executor 
of said will, and that letters testamentary thereon issue to said executor upon his 
taking the oath prescribed by law, and ^giving a bond conditioned for the faithful 
execution of his duties as such executor,* in the sum of twelve thousand dollars, to 
be approved by the judge of this court. 

And it is further ordered, that the letters of administration heretofore granted to 
the said Austin E. Smith as aforesaid, be and the same are hereby revoked, and 
that said Austin E. Smith do render an account of his administration as aforesaid 
to this court within thirty days from this date. 

San Francisco, March 15th, 1858. T. W. Fbeelon, County Judge. 



APPENDIX. XXTX 

Beetioiii 
^^.^-^ «^ Probate 

iTO- eo. Act. 

APPOINTMENT OF APPRAISERS. (§106.) 

In the Matter of the Estate 1 j^ ^^^ ^^^^ ^^^ : 

Alexis WiUiams, Deceased.) of the City and County of Saa Francisco. ^ 

Letters of administration having been granted to I. Lawrence Pool, and applica- 
tion being made to the court for appointment of appraisers, to appraise the estate of 
said deceased : 

It is hereby ordered that C. C. P. Parker, Qeorge Jones and Samuel Swift, three 
disinterested persons, competent and capable to act, be appointed such appraisers. 

San Francisco, April 1st, 1868. M. C. Blaks, Probate Judge. 



INVENTORY, WITH THE AFFIDAVITS, &c 
In the Matter of the Estate ^ p^^^^^^ ^^^^ 

Alexis WilUams, Deceased. J ^'^y ^°^ ^^^'^ ^^ «^ Francisco. 

I, William Duer, County Clerk of the city and county of San Francisco, and ex 
officio Clerk of the Probate Court, do hereby certify that C. C. P. Parker, George 
Jones and Samuel Swift have been duly appointed appraisers of the estate of Alexis 
Williams deceased, by order of the court, duly entered and recorded on the 1st day 
of April, A. D. 1868. 

r I Witness my hand and seal of said Probate Court, this 1st day of April* 

ISEAii.j jggg William Dube, Clerk. 

State of California, City and County of San Francisco, ss. 

C. C. P. Parker, George Jones and Samuel Swift, duly appointed appraisers of the 
estate of Alexis Williams deceased, being duly sworn each for himself says, that he 
will truly, honestly and impartially appraise the property of said estate which shall 
be exhibited to him, according to the best of his knowledge and ability. 

Subscribed and sworn before me, this 17th day of 1 C. C. P. Pabkes, 

May, 1868. > George Jones, 

John Hahka, Deputy Clerk. ) Samuel Swift. 



I) 



In the Matter of the Estate 

of • . ^ Inventory and Appraisement. (^ 106, 107, 108.) 
fAlexis Williams, Deceased. 

Real JEstate. 

1. A certain lot of land in the city and. county of San Francisco, des- 

cribed as follows, etc , etc., valued at ... ^10,000 00 

2. A certain tract of land in the county of Alameda, described, etc., 

etc., valued at ...... 5^000 00 

Personal Estaie, 

3. Promissory note, made by John Hoyt, dated May 1, 1867, for 

|1,000, endorsed by Wm. Pitt. Payment of $200 receipted. 
Valued at ------- 

4. Promissory note, Peter Hanks, $376, considered worthless. 
6. One horse, valued at - - * - 

6. One-half partnership interest in the house of Holman, Williams & 

Co., valued at ...-.- 

7. Clothing and furniture, small items, valued at - - - 

8. Moneys that have come to the hands of the administrator, 



800 00 

200 00 

6,000 00 

47 00 

1,083 26 


}106. 
§108. 


$22,130 26 





XXX APPENDIX. 

SeetioM 
Aet.^ State of California, City and County of San Francisco : u. 

I. Lawrence Pool, administrator of the estate of Alexis Williams deceased, being 

^ 111 ^^ sworn says, that the annexed inventory contains a true statement of all the 

^ ' estate of the deceased that has come to the knowledge and possession of deponent, 

and particularly of all money belonging to said deceased, and all Just claims of said 

deceased against this deponent I. Lawbsitcb Pool. 

Subscribed and sworn to before me, this 17th day of May, A. D. 1858. 

William B. Sattbbln, Deputy Clerk of the Probate Court 

We, the undersigned duly appointed appraisers of the estate of Alexis Williams 
I ^^^ deceased, do certify that the property mentioned in the foregoing appraisement has 
' been exhibited to us, and we appraise the same at twenty-two thousand one hundred 

and thirty dollars and twenty-fiye cents. 
May 20th, 1858. C. C. P Pabkbb, 

Geobgb Jonbb, 
Samubl Swift. 
Estate of Alexis Williams, deceased, 

To Parker, Jones and S¥rlft, Appraisers, Dr. 
To compensation for services in appraising said estate, items as follows : 
2 days' services, at $5 per day each ..... ^30 00 

Necessary disbursements, as follows : 
Fare to Alameda county and return, - - • - * 1 60 



Received payment, C. C. P. Pabkbb, 

Obobob Jovbs, 



|31 50 



Samubl Swift. 

^ This bin of appraisers' fees allowed this 20th May, 1858. 
V^vO. ' M. C. Blakb, Probate Judge. 

State of California, City and County of San Francisco, u, 

C. C. P. Parker, George Jones and Samuel Swift, the appraisers above named, 
y ^06* i)eing duly sworn each for himself says that the foregoing bill of items is correct and 
just, and that the services have been duly rendered as therein set forth. 

Subscribed and sworn to before me, this 20th 1 C. C. P. Pabkbb, 

day of May, A. D. 1858. > Obobgb Jonbs, 

Bbkj. E. Babcock, ) Samuel Swift. 

Deputy Clerk. 



ORDER TO SHOW CAUSE WHY LETTERS TESTAMENTARY, OR OF ADMIN- 
ISTRATION SHOULD NOT BE REVOKED FOR FAILURE TO FILE INVEN- 
TORY. 

[Title of estate, etc.] 

& 119 ^° reading and filing the petition of A. B., duly verified, showing that CD., the 
y ^*-^ administrator of the estate ot E. B., deceased, has neglected to file any inventcMy of 
said estate, within the period of the next term after his appointment, the time pre- 
scribed by law, nor within the period of two months thereafter, the further time 
granted him for that purpose by the order of this court duly made and recorded on 
the 4th day of January, 1858; it is hereby ordered, that the said CD., adminis- 
trator, be cited to be, anif appear before this court, at, etc., on, etc., to show cause 
why his letters of administration should not be reroked. 

M« N., Probate Judge. 
Dated, etc 



3sro. es- 

8UMMARY REVOCATION OF LETTERS FOR FAILURE TO FILE INVEN- 
TORY. 

In Probate Court, etc. In the Matter of the Estate of, &c. 
^112. It appearing to this court, from the files thereof, and from the proofs made to the 



n 



APPENDIX. XYYl 

Seetions 

satisfieiction of the court, that the executor of the last will and testament of A. B., ^"Jl^^ 
deceased, has failed to return any inventory of the property of said estate, that the 
term of court succeeding the term at which he was appointed executor, has expired, 
and that, after the order of this court, duly made, and returned served upon said 
executor, he retuses or nejs^lects to file such inventory, or to show cause, and the 
time allowed by said order having expired : Now, on motion of J. K., it is hereby 
ordered, that his letters testamentary be, and the same are hereby revoked, and his 
bond as such executor, is declared forfeited and held liable to said estate for any 
injury sustained by said neglect. 

[Signed, etc.] 
[Dated, etc.] 



PETITION AND COMPLAINT OF EMBEZZLEMENT, etc. (§ 117.) 

[Title and Estate, and Court.] 

To the Hon. the Probate Judge of, &c. 

A. B., administrator, &c., complains that one C. D., as your petitioner, is informed } 117. 
and believes, was a short time previous to the death of deceased, in possession of a 
certain diamond ring, of the value of ^00, the property of the said deceased ; 
that the said 0. D., refuses to give any information in regard to the same or to make 
any answer to the inquiries of your petitioner in reference thereto. Wherefore, 
your petitioner complains that said C. D. conceals, or has embezzled or disposed of 
said property of said deceased, and prays that he may be cited to appear before 
this honorable court and be examined on oath, and answer interrogations touching 
the matter of this complaint. A. B. Adm'r. 

[Affidavit as in form No. 86.] 

An order for citation and also a citation can easily be drawn firom the above peti- 
tion. See forms Nos. 45, 46 and 50, 51. 



3sro. ee. 

ORDER FOR WARRANT OF COMMITMENT FOR REFUSING TO ANSWER 

IN THE ABOVE MATTER. (§ 118.) 

[In the Matter of, &c. — In Probate Court, &c.] 

C. D., having been cited before this court to be examined and answer interro- 
gatories concerning certain property alleged in tbe complaint of A. B., adminii^trar 
tor, to be the property of said estate, and the citation being duly returned, properly 
served, and the said 0. D. having appeared in obedience thereto, and having reftised 
to answer the interrogatories put to him touching the matter of said complaint, after 
being ordered thereto by the court, and which interrogatories are as follows : [here 
insert] and tbe said C. D., still refusing to answer the said interrogatories whereby 
said 0. D. is guilty of a contempt : It is hereby ordered, that the said 0. D. be 
conmiitted to the county jail of this county, there to remain in close custody, until 
he shall submit to the order of this court, and answer said interrogatories, and that 
a warrant for that purpose issue. 

M. C. Blakb, County Judge. 



WARRANT OF COMMITMENT. (§ 118)— (§ 481, 489 of Practice Act.) 

In the Matter of the Estate^ j^ ^^^ p^^^^^ ^^^^ 

B. F., iSjceased. ) ^'^^ ""^ ^^""^^ ^^ ^'^ Francisco. 

Tbe People of the State of California to the Sheriff of the city and county of San 
Francisco, greeting : 

You are hereby commanded to take the body of C.^., and imprison him in the 
county jail of the city and county of San Francisco, in close custody, for refusing 



XXXU APPENDIX. 

Seetioiu 

Act. to answer certain interrogatories propounded to him upon his examination on the 
complaint of A. B., administrator, in the matter of the estate of £. F., deceased, 
as follows : [here insert interrogatories,] there to remain until he shall consent to 
answer said interrogatories, or until the further command of this court, 
r a 1 Witness, the Honorable M C. Blake, Judge ex officio of our Probate 
l**' *«J Court, in and for the City and County of San Francisco, with the seal of 
said court affixed, this 19th day of April, A. P. 1858. 

Attest : William Dubb, Clerk. 

By J. F. BowMAK, Deputy. 



3sro. 37. 

PETITION FOR ALLOWANCE FOR THE SUPPORT OF FAMILY. (§ 120.) 

Title etc., of Estate and Court. 

The petition of C. B., widow of A. B., deceased, respectfully showeth: 

That letters of administration have been granted herein to E. F., [of* that no letters 
of administration have yet been granted upon said estate,] and that no inventory 
has been as yet returned to this court. 

That your petitioner, and G. H., J. K. and L., the minor children of said deceased, 

are without estate of their own, and wholly dependant upon the estate of said 

deceased for maintenance ; that said estate is amply able to provide an allowance 

to your petitioner for her support, and that of her said minor children to the extent 

6 120 ^^ i^^ ^^ month, and which is a reasonable amount for that purpose, according 

" to their circumstances and accustomed mode of life. 

Wherefore, your petitioner pittys that an allowance out of said estate to said 
amount of $260 per month, for the support of the family of deceased, until the 
return of said inventory, be made by order of this court. 

C. B. 
[Sworn to as in No. 86.] 



§120. 



ORDER FOR AN ALLOWANCE. 

[Title of Estate, etc.] 

On reading and filing the petition of C. B., the widow of said deceased, praying 
that a provision for the support of the family ot deceased, be made out of said 
estate, until the return of an inventory. It is hereby ordered, that the sum of $260 
per month be appropriated out of said estate for the support of said C. B. and her 
minor children, until the inventory be returned, and E. F., the administrator of said 
estate is hereby ordered to pay the same monthly, on the first day of each and every 
month, to the said C. B., widow of said deceased, until said inventory be returned, 
or until the further order of this court. 

M. N , Probate Judge. 

[Dated, etc.] 



ORDER SETTING APART PROPERTY (§ 121.) 

[Title, etc.] 

The petition of 0. B., being filed herein and presented to this court, and it ap- 
> 1 21 P^&i'ii^g ^ ^^is court that the inventory of the estate of deceased, has been returned 
' * and filed, the same having been duly appraised, whereby, it appears that said estate 
is possessed of property to the amount in value of $20,000, and it ftirther appearing 
by the said petition of C. B., the widow of deceased, that the amount of property 
included in said inventory which is by law exempt from execution, is insufficient 
for the support of the said widow and the minor children of deceased, and that the 
sum of $260 per month heretofore allowed by this court is insufficient for the pur- 
poses of such maintenance ; and it further appearing by said petition that the debts 



APPENDIX. JCSXIU 

Sections 
of said estate are moderate, and do not exceed in all probability the sum of $1,000. ^'^ct?* 
It is hereby ordered, that the order heretofore made in this estate, granting an j ^20. 
allowance to the widow and minor children of deceased of $260 per month be 
vacated, and that an allowance of $300 per month be made from henceforth, and 
mitil the further order of the court, to be paid to said widow, monthly, on the first § 122. 
day of each month by said administrator. And it is further ordered, that the home- 
stead of said deceased, consisting of a certain lot with the dwelling house thereon, t ^24 
situate, lying and being in the city of San Francisco, and described as follows, etc. : uot^/ 
[insert description] and also the following articles mentioned and appraised in said ^ ^21. 
inventory, to wit : [insert the articles,] be set apart for the use of the family of ^ 
deceased, the one half part of all which property so set apart, shall belong to the 
said widow, and the remaining half in equal shares to John, James, Sarah, Ellen £., 
and Mary Ann, the minor children of deceased. 

M. C. Blake, Probate Judge. 



ORDER FOR ALLOWANCE TO FAMILY WHILE ESTATE IS INSOLVENT. 

(§122.) 

[Title, etc. as in foregoing.] 

On reading and filing the petition of R. S., widow of deceased, duly verified, and 
it appearing therefrom that tlie said estate is insolvent and that it is necessary that 
provision should be made out of said estate for the maintenance of the family of 
said deceased, it is hereby ordered that an allowance of $50 per month be made for 
their support during the progress of the settlement of the estate for a period not to } 122. 
exceed one year, and the administrator is ordered to pay the same monthly to said 
R. 8. , widow of deceased. Y 123. 

Dated, etc. M. N., Probate Judge. 



KTO, 71- 

ORDER THAT THE WHOLE ESTATE BE PAID TO THE FAMILY. ($ 126.) 

[Title of Estate, etc.] 

. The petition of A. B., widow of L. B. deceased, being presented to this court, 
showing that there are four minor children of deceased him surviving, Qeorge, Mary, 
Sosan and Helen Kate, who are without means of support, and it appearing ft'om 
the inventory returned by the said A. B., administratrix of said deceased, that the 
value of the estate does not exceed five hundred dollars. 

It is hereby ordered, adjudged and decreed, that after the payment of the charges 
of the funeral of said deceased and of the expenses of administration, which amount, 
as appears by the account of the administratrix filed herein, to the sum of $122 50, 
the whole of the estate being the amount of $ , as shown by said inventory, 

be assigned for the use and support of said minor children, and that no further 
proceedings be had in this administration unless further estate be discovered. And 
it is further ordered that the whole of said property so set apart, to wit, the prop- 
erty and estate set forth in the inventory filed herein, less the amount necessary to 
pay said funeral charges and the expenses of administration, be and the same is 
hereby declared to be the property of said minor children, the widow, the said A. x 225. 
B., having a maintenance derived from her own property, equal to the one-half 
part or portion of the property set apart for the benefit of the family of deceased, 
the whole amount thereof is hereby decreed to be the property of said minor chil- 127. 
dren. 

M. N., Probate Judge. 



E 



XXXiv APPENDIX* 

Seetlou 
Act, ITO. 7a- 

ORDBB FOR AXJiOWANOB TO FAMILY. (§ 122.) 

In the Matter of the ikitate 1 j^ ^^^^^ ^^^^ 

JohD Hart Deceased. J City and County of Saa Franciaco. 

It appearing to the court on the application of the executrix and executor of said 
estate that said testator died leaving a widow and five children, four of whom are 
minors and three of the minors females, and that the said widow and children are 
not possessed of any separate estate and that a reasonable allowance out of the said 
estate is necessary for their support. It is therefore ordered by the court that the 
sum of twenty-five hundred dollars be allowed and set apart for the support and 
maintenance of said widow and minor children, for one year from and after the date 
of the letters testamentary herein, and also that the property belonging to said es- 
tate and exempt from execution shall also be set apart and reserved for the use of 
said widow and minor children. 

T. W. Fbeeloit, County Judge. 



3sro. rs. 

ORDER FOR ALLOWANCE AND HOMESTEAD. (§124.) 

In the Matter of the last Will and Testament ] In the Probate Court, 

of y in and for the 

Henry Gunter, Deceased. ) County of San Francisco. 

Elizabeth Agnes Gunter, the widow of the said Henry Gunter deceased, having 
heretofore presented her petition to this court, praying that the homestead and 
other property exempt from execution be set apart for the use of the said widow 
and the the minor child of the deceased, and that an allowance be made to her for 
the support and maintenance of herself and family, from the time of the death of 
the said Henry Gunter^ during the progress and until the final settlement of his 
estate, and the same having been referred to D. P. Belknap, Esq., to ascertain and 
report to this court what sum should be allowed to said petitioner for the support 
and maintenance of herself and family, as prayed in said petition, what portion of 
the property mentioned in said petition is exempt from execution, and whether the 
premises therein mentioned do constitute the homestead of said petitioner, and if so 
the value thereof, and the said referee having this day presented his report on said 
application, showing that the premises mentioned in said petition do constitute the 
homestead of said petitioner and her family, and are of the value of $2fiOO or there- 
abouts ; that the household ftimiture and personal property mentioned in the inven- 
tory herein filed is all exempt from execution and is of the value of j^200 or there- 
abouts, and recommending that the said petitioner £. A. Gunter have an allowance 
of one hundred dollars per month from the time of the death of the said Henry 
Gunter (October 19th, 1866) until the present time, and an allowance of one hundred 
and fifty dollars per month for the friture ; that the said homestead be assigned to 
the said petiticMier subject to the claim of the mortgage of Brisac, and that the 
household furniture, as set forth in the inventory be set apart to the s lid petitioners. 

Now therelbre, it is ordered that said application of said petitioner be granted 
and said report be confirmed ; that the premises mentioned in said petition and in 
the inventory herein filed, situated on Eliza Place, between Washington and Jack- 
son and Taylor and Jones streets, in the city and county of San Francisco, be set 
apart for the benefit of l^e said Elizabeth A. Gunter, the widow of said deceased, 
and the said Archibald C. Guuter, the only child of said deceased, subject however 
to the mortgage given by the said Henry and Elizabeth A. Gunter, in the lifetime of 
said Henry Gunter to Felix Brisac which said mortgage and the rights of the said 
mortgagee shall not be in anywise impaired or affected by this order. It is further 
ordered that the household furniture and other personal property mentioned in the 
inventory herein filed, exempt from execution, be set apart for the use of the said 
petitioner and the said minor child Archibald G. Gunter. and that there be allowed 
to said petitioner, for the support and maintenance of herself and family, one hun- 



APPENDIX* XaCXT 

dred doUars per month from the time of the death of said Henry Gonter (Oct 19Ch, ^'^^ 
1856) until the present time, and one hundred and fifty doUars per month from this 
time on. and until the final settlement of said estate. 
Dated San fraocisco, May 24th. 185a M. G. Blau, 

County Judge and ex-oflleio Probate Jod^e. 



NO. 74, 

OEDER OF PUBLICATION OP NOTICE TO EBDITQES. (§128.) 

In the Matter of the Estate | ^.^^ ^^ ^^^^^^ ^^ 
Valentine Castro, Deceased, j ^"^ Francisco. 

It is ordered, that notice to the creditors of the said Valentine Castro, deceased, 
requiring all persons having claims against the said deceased, to exhibit the same 
with the necessary Touchers, according to law, be giren by publication in tiie Daily 
Alta Califomia, a newspaper, printed and publish^ in the city and county of Ban 
Francisco, twice a week, for the period of ten weeks. 

T. W. Fbbblon, County Judge. 



3sro, re, 

NOTICE TO CEBDITOES, WITH AFFIDAVIT OP PUBLICATION. (}128, 129.) 

Estate of Valentiiie Castro, deceased. 

Notice is hereby given by the undersigned, administrator of the above named 
estate, to the creditors of, and all persons having claims against said deceased, to 
exhibit the same, with the necessary vouchers, within ten months from the first 
publication of this notice to the undersigned, at his office, Nos. 86 and 88, Battery 
street, in the city of San Francisco. 

Geo. C. JoHirsoir, Administrator. 

San Francisco, February Ist, 1858. 

City and County of San Francisco, se. 

A. D., printer, [or " publisher," § 129] of tho Daily Evening Bulletin, a newspa- 
per, published in said city and county, 'being duly sworn, says, that the notice to 
creditors of the estate of Valentine Castro« of which the annexed is a copy, was 
published in said piEiper, twice a week, tor the period of ten weeks, from the 1st 
day of February, 1858, to the 19th day of April, 1858. 

A. D. 
Sworn before me, April 20th, 1858. 

Wm. F. SwAasT, Notary Public 



iTo. re. 

CEEDITOES CLAIM, OEDEE TO TAKE OEIOINAL FEOM FILE, AND PEO- 

CEEDINGS THEEEON. 

In the Matter of the Estate ) 

of \ 

Wm. H. Palmer, deceased. J 

On Application of Nicholas Luning, it is ordered, that said Nicholas Luning may 
withdraw from the files of this court his claim, for safe keeping, certified and ap- 
proved by the administrator and county judge, against the estate of William H. 
Palmer, deceased. 

It is also ordered, that the clerk of this court make out a correct copy of said 
claim to be left on file, in lieu of the original, at the expense of the said Luning, 
and on the said Luning executing a receipt for said claim, the clerk is directed to 
deliver said original paper to him. 

T. W. FbsbXiOv, County Judge. 



XXXVl APPENDIX. 

Beetions 

'* A^^ Estate of William H. Palmer, deceased, 

To Nicholas Luning, Dr. 
To amount of principal sum expressed in a certain promissory note made by dece- 
dent, William H. Palmer, on the 26th August, 1866, by which he promised to pay 
to said Nicholas Luning, the sum of forty thousand dollars, with interest, until paid, 
at the rate of two and a half per cent per month, which said note is in the words 
and figures, following^, to wit : 

" $40,000. San Francisco, Aus^ust 26, 1866. 

" Twelve months after date, without grace, I promise to pay to Nicholas Luning, 
" or order, forty thousand dollars, with interest, at the rate of two and a half per 
" cent per month, ptfyable monthly, in advance, for value received, negotiable and 
" payable at the office of said Nicholas Luning, in the city of San Francisco." 

Wm. H. Palmkr." 
Which said note was secured to be paid by a mortgage, made by said decedent to 
said Luning, of the date of said note, executed in due form of law by which was 
conveyed to said Luning, the following mentioned property, to wit: 

1st. A lot of ground in the city of San Francisco, south side of Jackson street, 
between Drum and Eastern front of the city, extending to Oregon street. 

2d. Water lots Nos. 457, 458, 463, 464, and 465, in said city. 

8d. Hundred vara lot No. 145, in said city. 

All of which, will more fully and at large appear by reference to said mortgage, 
recorded in the Recorder's Office of San Francisco county, in Liber 31 of mortgages 
at page 696. 

Claim, $40,000— interest being paid to 26th August, 1857. 
State of California, City and County of San Francisco, ss, 

Nicholas Luning, being duly sworn, deposes and says, that the foregoing claim 
against the estate of William H. Palmer, deceased, is justly due, and owing to de- 
ponent, that no payments have been made thereon, except only the interest, which 
has been fully paid up to 26th August, 1857, and that there are no offsets to the 
principal sum of said claim to the loiowledge of deponent. 

NioBOLAB LuNiwa. 

Subscribed and sworn to before me this 26th day of Aug. 1857. 
[seal.] E. p. Peckham, Notary Public. 

(Endorsed.) Filed Dec. 14, 1857. Belknap, D. C. 

This claim being proved to the satisfaction of the undersigned administrator, and 
being known by the undersigned to be correct, it is hereby endorsed, " allowed," 
and admitted as a just claim against the estate of William H. Palmer, deceased. 

Joseph C. Palmes, 
Administrator of estate of W. H. Palmer. 
Allowed and approved, this 14th September, 1857. 
T. W. Fbbelon, County Judge 

State of California, City and County of San Francisco, m. 

I, William Duer, county clerk of the city and county of San Francisco, State of 
California, and ex officio clerk of the Probate court thereof, do hereby certify the 
foregoing to be a true copy of the original delivered to the said Luning in accor- 
dance with the annexed order of this court, this day, made and filed in said court. 

Witness my hand and the seal of said court, this 14th day of- December, A. D., 
1857. William Dueb, Clerk, 

D. P. Belknap, Deputy Clerk. 

Received, San Francisco, Dec. 14th, 1857. of the clerk of tne probate court, in 
accordance with the order of the court hereto annexed, the original paper of which 
the foregoing is a certified copy. N. L(7irina. 



CREDITOR'S CLAIM. (§ 131.) 

In the Matter of the Estate ) 

of [ 

, Jabez Coit, Deceased. ) 

Letters of administration upon the above named estate having been granted to 
J. H. Fish, the undersigned presents his claim against said estate with the neces- 
sary vouchers to said J. H. Fish, administrator, for approval, as follows, to wit: 



§131. 



APPENDIX. XXXVll 

Sections 

Estate of Jabez Coit, To Robert C. Johnson, Dr. ^S** 

To amount of promissory note herewith filed, dated January 6, 1868, - J500 00 
To interest on same, Arom January 5, 1858, at 2 per cent, per month till 
paid, --------- 

To cash loaned. May 1, 1866, 50 00 

To agreed price of horse, sold and deliyered March 6th, 1857, - - 250 00 

State of California, City and County of San Francisco, ss. 

Robert C. Johnson, whose foregoing claim is herewith presented to the adminis- 
trator of said estate, being duly sworn says that the amount thereof, to wit, the sum 
of eight hundred dollars, with interest as above set forth, is justly due to this claim- 
ant. (SMEmkU.j Robert C. JoHHSON. 

Subscribed and sworn to before me, May 25th, A. D. 1858. 

J. F. Bowman, Deputy Clerk. 

[Indorsement upon this claim.] 

The within claim is allowed and approved for ^00, with interest as claimed, and r§ 132. 
$250 for the horse. The item of $50 is without voucher or proof, is barred by the § 135. 
statute of limitations and is rejected. § 139. 

May '25th, 1858. J. H. Fibh, Administrator. 

Allowed and approved this 27th day of May, 1858, for all but the item of $50, § 132. 
which latter is rejected. M. C. Blakb, Probate Judge. § 139. 



3SrOj 78. 

CONSENT BETWEEN ADMINISTRATOR AND A CLAIMANT TO REFER. 

(§142.) 

[In the Matter of, etc.] 

The claim of A. D. against the estate of B. C. deceased, for the sum of $500, al- 
leged to be due to the said A. D. for money lent and advanced by him to deceased x ^gl. 
in his life time, having been presented to E. F., the administrator of said estate, 
verified in due form of law, anci the said administrator having reason to doubt the 
correctness thereof, the same being unaccompanied by any voucher and not ap- 
pearing upon the books of said deceased, and having therefore endorsed thereon his 
rejection of the same, it is hereby agreed to refer the matter to J. T. Boyd, Esq., a 
disinterested person, to hear and determine the said claim and report thereon to the 
District court, provided the appointment of said J. T. Boyd be approved by the pro- 
bate judge. 

Dated, etc. Signed E. F., Administrator, 

A. D., Claimant. 
[Indorsement.] 

The appointment within, of J. T. Boyd, Esq., referee is approved. 9 142« 

Dated, etc. M. N., Probate Judge. 

RULE OP SUCH REFERENCE TO BE ENTERED IN DISTRICT COURT. ($ 142 ) 

In the District Court of the 4th Judicial District of the State of California. 

In the Matter of the Estate 1 

of, &;c., Deceased. 
In administration in the Pro- > Rule of Reference, 
bate Court of the Connty of [ 
San Francisco. J 

On Filing the agreement of E. F., administrator of the above named estate, and 
of A. D., who makes claim against said estate for the sum of $500, agreeing to refer 
said claim to J. T. Boyd, Esq., and on filing said claim, and the approval of the 
probate judge of this county, approving the appointment of said J. T. Boyd, as 
referee, the said claim is hereby referred to said J. T. Boyd, to hear and determine 
the same and make report thereon to this court. 



• •• 



XXXVm APPJENPXZ. 

SwtlOIMI 

A«t ITO- so. 

ORDER TO SHOW CAUSE AGAINST REVOCATION OF LETTERS ON FAILURE 

TO GIVE NOTICE TO CREDITORS. (4 146.) 

[Title, «tc.] 

It appearing to this court by the records tbereof, that A. B., was duly appointed 
administrator of the estate of 0. D., deceased, by tho order of this court, etc., and 
that letters of administration were duly issued to him, and that he duly qualified, 
and became such administrator by taking the oath required by law and by filing a 
proper bond in accordance with the order of, and duly approved by, this court upon 
the same day, and that on said last mentioned day, an order was made by this court 
that the said A. B., administrator, publish at least onoe a week for the period of 
four weeks, in the San Francisco Herald, a newspaper published in the city and 
county of San Francisco, a notice to the creditors of deceased for the presentatioii 
of their claims against said deceased to said administrator, within ten months ; and 
it further appearing to this court that two months have elapsed since said appoint- 
ment and qualification as such administrator and the making of said order ; and it 
further appearing by the affidavit of E. L., duly filed in this court, that said admin- 
istrator has feiil^ to publish said notice ; it is therefore hereby ordered, that the 
said administrator show cause before this court, at ete,, on etc., why his letters of 
administration aboold not be revoked. 

M. N., Probate Judge. 



PETITION FOR SALE OF PERSONAL PROPERTY. (§160.) 
[Title, etc.] 

To the Honorable Probate Court, etc. 
The petition of A. B., administrator, respectftilly showeth, that there are claims 
A ^gQ against the estate of said deceased which have been duly presented and allowed by 
^ * petitioner and this Honorable Court, amounting to the sum of |1,000 ; that no money 
has come to the hands of your petitioner, except the sum of $260, which has been 
paid out in the necessary expenses of administration, including the funeral 
expenses of deceased, and that for the payment of said claims and the ftirther ex- 
penses of administration it becomes necessary to sell the personal property of said 
estate ; that the said personal property is fufiy set forth in the inventory on file, to 
which reference is made. 
Wherefore your petitioner prays for an order of sale, etc. 
[Sworn to as in form No. 85.] A. B. Administrator. 



x<ro. 8S. 

ORDER OP SALE OP PERSONAL PROPERTY. (§151.) 

[Title, etc.] 

} 160, An application having been made to this court by the petition of A. B., the ex- 
ecutor, duly verified and filed herein, for the sale of the personal property of said 
estate, for the purpose of [state the object, § 150] and due notice of the hearing of 
said application and of the time and place thereof having been given by [state by 
posting or advertising, and the particulars thereof, if posting ten days, if advertis- 
ing five days] and proof thereof being made to the satisfaction of this court and filed 
herein, -and the same now coming on to be heard, in accordance with said notice, 
and said applicant appearing in person and J. M. appearing in opposition, being a 
A -^^i^ legatee and claiming under the bequest of the deceased a portion of the personal 
9 180*. P^^V^^J ^ ^^^ estate, being two horses, mentioned and described in the inventory 
on file, and after a Aill hearing of the matter it appearing to this court that a sale of 
. the personal property of said estate is necessary for [here state the object, ^150]: 
It is hereby onlered that such sale be made by public auction at the house of said 
deceased, where said property is now present, and that notice of said sale, specifjr- 
ing the time and place thereof, be given by publication in the , a news^ 



APPBXfDIX. XXXIX 

SeetfoQA 
paper published in the city and county of San Francisoo, for ten days immediately P^bate 
previous to such sale ; And it is lurther ordered that tlie said property so bequeathed 
to J. M. be reserved from sale until the residue of the personal [and real, ^ i80J pro- 
perty has been applied to the payment of the debts of the deceased. 

M. JS., Probate Jndg«. 

20*0. 83. 
BEPORT OP PRIVATE SALES OF PERSONAL PROPERTY. (^ 162, see § 192.) 



Li the Matter of the Estate ) In the Probate Court, 

of > City and County of San Francisco. 

James H. Wingate, Deceased. ) State of California. 

Report of Administratrix sale of personal property. 

In pursuance of an order of said court, made on the fifth day of October, A. D. 
1867, authorizing said administratrix to sell a horse at private sale, and also of an 
order made on the second day of November, A. D. 1867, authorizing said adminis- 
tratrix to sell all the personal property at private sale, not set apart for the use of 
the administratrix, as surviving widow of said deceased, the said administratrix 
hereby reports : 

That she has sold the said horse for the sum of f 160, being the highest price she 
was able to obtain therefor, and a^ she is advised the full value thereof; also that 
she has sold the wooden buildings situated on land at the southeast comer of Clay 
and Stockton streets, in said city of San Francisco, being 61 feet on Stockton street 
by 34 feet on Clay street, to Geo. B. Moore, for the sum of $700, which she is ad- 
vised is the full value of said buildings; and $100, or thereabouts, more than the 
same were valued at by the appraisers of said estate, said buildings being on leased 
Ifuid and no other person offering a greater sum therefor. 

Wherefore the said administratrix prays that said sales may be approved by the 
Judge of this Court, and that this report and said sales may be confirmed. 

Helena Wingate, Administratrix. 



:LT0^ 84. 

ORDER CONFIRMING REPORT OF ADMINISTRATRIX. (§ 162.) 
In the Matter of the Estate ^ j^ ^^^ ^^^^^ ^^^ 

James H. Wingate, Deceased, j ^^ *^* ^^^^ *^^ ^^^^^ ^^ San Francisco. 

Order confirming report of administratrix. 

On reading and filing the report of Helena Wingate, administratrix of the estate 
of James H. Wingate, of the sale of personal property, and the affidavit of Clinton 
P. Scovill, showing that said administratrix has obtained the full value of the prop- 
erty mentioned in the said report and it appearing to the court that the consider- 
ation has been paid to said administratrix : 

It is hereby ordered, that the sale of the horse and buildings in said report men- 
tioned be approved, and said sales are hereby confirmed, no objections having been 
made thereto, to wit : one horse and the wooden tenements at the southeast comer 
of Stockton and Clay streets, in San Francisco, being 61 feet on Stockton street and 
84 feet on Clay street in San Francisco. 

T. W. Frbelon, County Judge. 



PETITION FOR SALE OF PERSONAL PROPERTY. (4 149, 160.) 



In the Matter of the Estate 

of ^ In Probate Court. 

Jacob Arnold, Deceased. 



ite) 

i. 3 



To the Hon. Thos. W. Freelon, Judge of the Probate Court of San Francisco County. 
Tour petitioner, Julia Ann Arnold, respectfully represents to your Honor, that she 



y 



Seetioiii 

Probate 

Act. 



xl APPENDIX. 

was by an order of your honorable court, made on the 11th day of December, A. 
D., 1854, appointed administratrix of the estate ol her late husband, Jacob Arnold, 
deceased. 

That she has returned to your honorable court, an inventory of the estate of said 
deceased, that the whole of said estate amounts, as appears by said inventory to the 
sum of eight hundred and thirty dollars, that the whole of the property is personal, 
and of a perishable nature, that your petitioner has two children, the issue of her 
marriage with the said deceased, and that she has no property, save her interest in 
said estate, and no other means, of support. 

Wherefore, she prays that an order may be made authorizing her to sell by public 
auction the property of her said deceased husband, as shown by said inventory, to 
consist of the undivided one half interest in the building called " the San Francisco 
Baths, " and the furniture and fixtures thereof. The same being necessary to pay 
the expenses of administration, and for the support of herself and family. 

Julia Ann Abkold. 

January 23d, 1865. 

County of San Francisco, 88. 

Julia Ann Arnold, being duly sworn, deposeth and saith, that she has heard read 
the foregoing petition, and knows ihe contents thereof; that the same is true of her 
own knowledge and belief. 

Julia Akv Askold. 
Sworn before me this 28d day of January, 1857. 

Dsiris Ltovs, deputy county clerk. 

[For Proof of Postino, Noticb of Hbabiho, (§ 150,) see form No. 17, ante.] 



XTO. 86. 
ORDER OF SALE PERSONAL PROPERTY. (^ 161.) 
In the Matter of the Estate ^ j^ p^^^^^ ^^^^ 

Jacob Arnold, Deceased. ) ^^ Francisco County. 

On reading the petition of Julia Ann Arnold, administratrix of the estate of said 
deceased, heretofore filed in this court, proof being made of the posting of notices 
of the day set for hearing the same, and it appearing upon full examination that a 
sale of the personal property of the deceased, is necessary, for the payment of the 
expenses of administration and the just claims against the estate and as well for 
the support of the family of the deceased. 

It is by the court ordered, that the said Julia Ann Arnold. Administratrix aa 
aforesaid be, and she is hereby authorized to sell by public auction, on the premises, 
to the highest bidder for cash, the interest of the said Jacob Arnold, deceased, in the 
" San Francisco Baths," consisting as appears by the inventory on file, of the one 
half of the building, bathing apparatus, furniture, steam engine, fixtures, etc. 

T. W. Freelow, County Judge. 

Dated, San Francisco, Jan. 29, 1854. 



N"0. 87- 

ORDER OF CONFIRMATION OF SALE OF PERSONAL PROPERTY. (§ 152.) 
In the Matter of the Estate ^ j^ p^^^^^^^ ^^^^^^ 

Jacob AmoW, Deceased. ) ^'^^ *°^ ^^^^^ ^^ ^^^ Francisco. 

On hearing the report of Julia Ann Arnold, administratrix of the estate of Jacob 
Arnold deceased, this day made to the court, of the sale of the personal property of 
said deceased, and the affidavits accompanying such report, and examination being 
made by the court of the value of the property of the said deceased, so sold by said 
administratrix, and it appearing to the court that said property on said sale realized 
its full value, and that a greater sum could not be obtained therefor : 

It is by the court ordered and decreed, that the report of sale, as made by said 
Julia Ann Arnold, administratrix ot the estate of Jacob Arnold deceased, of the per- 
sonal property of said deceased, be and hereby is confirmed and aUowed, and that 



A PPENDIX. Xli 

Seetions 
the said administratrix make all proper and legal conveyance of said property so by ^^^ 
her sold to the said Denis Lyons, the purchaser thereof, on his payment to her of ° * 
the sum by him bidden for the same. 



San Francisco, February 12th, 1866. 



T. W. Freelon, County Judge. 



N"0- 88. 

APPLICATION FOR SALE OF PERISHABLE PROPERTY. (§ 160.) 
In the Matter of the Estate ) j^ ^^^ ^^^^^ ^^^^ 

Joseph L. Fokom, Deceased. ) ^^ *^« ^^^ ^^^ ^^^^^^^ <>f San Francisco. 

The undersigned executors of said last will and testament apply to the court for 
an order to sell as perishabliB property the articles embraced in the inventory and 
appraisement on file, under the title of household furniture, with the exception of 
the silver, engravings, table linen and bed linen, also the Tehama House furniture, 
and everything under ^the title '* stable ;" that the said property besides being ex- 
posed to fire is depreciating in value and a source of expense in its keeping, and 
therefore for the interests of the estate should be sold. 

San Francisco, Oct. 1st, 1865. Arched C. Peachy, 

P. Warren VanWdjkle. Executors. 

Henry W. Halleck, one of the executors, being now without the county of San 
Francisco, as he has been for some weeks past, is unable for that reason to sign the 
foregoing application. 

San Francisco, Oct. Ist, 1865. Arched C. Peachy, 

P. Warren Van Winkle, Executors. 



N"0. 80. 



ORDER OF SALE OF PERISHABLE PROPERTY, (§ 160, 161.) 

State op California, ) In Probate Court. 

County op San Francisco. J October 1st, 1865. 

Hon. Thomas W. Freelon, Judge. 



In the Matter of the Estate 

of 
Joseph L. Folsom, Deceased. 



\ 



The written application on file of the executors for an order to sell as perishable 
property the articles embraced in the inventory and appraisement, on file under the 
title of *' household furniture " (with the exception of the silver, engravings, table 
and bed linen), " Tehama House furniture " and " stable," having been presented to 
the court by the attorney of the executors, the attorney, Mr. Robert C. Rogers, of 
the minors interested in said estate and of persons residing out of the county of San 
Francisco, being present and the court having considered the matter : It is ordered 
that the application be granted, and that the executors sell at public auction, giving 
notice pursuant to the provisions of the statute, the articles embraced in the inven- 
tory and appaaisement on file under the titles of " household furniture " (with the 
exception of silver, engravings, table and bed linen), " Tehama House furniture " 
and " stable,'' the same being deemed perishable. 

T. W. Freelon, County Judge. 

The foregoing order agreed to. Robt. C. Rooebb, 

Attorney of Minors interested in the estate, and persons 
residing out of the county of San Francisco. 

Frederick Billinos, 
Attorney Ibr Executon . 

F 



xUi ' APPENDIX. 

Efeetiofii 

Probate ^^.,-^ n^ 

Act. 3sro- eo- 

ORDER OF SALE, EITHER PRIVATE OE AT AUCTION. ( ^ 162.) 
State of California, San Francisco County : ss. 



In the Matter of the Estate ^ 

of > In Probate Conrt. 

Wm. H. Moylan, Deceased. ) 

On reading the petition of Mary Anne Moylan, administratrix of the estate of 
William H. Moylan, deceased, praying for an order to sell certain personal property 
of ^e estate of said deceased. 

It appearing to the court upon examination of the facts and circnmstanees con*- 
nected therewith, that a sale of said personalty is necessary to pay the expenses of 
administration and for the support of the family of the deceased. 

It is ordered, that said administratrix sell at priyate sale, or by public auction, 
after giving notice, if sold by public auction, of the time and place of sale, the fol- 
lowing described personal property, viz : one old iron safe, one common bedstead, 
one old carpet,, one single iron bedstead, one sausage machine, one grindstone, two 
common beef Ways, one chopper, one saw, one pair beam steelyards, one pair steel- 
yards, and one meat rack. 

And that upon making sale of the aforesaid articles^ the a<i[ministratrix report the 
same to this court. 

San Francisco, May 18th, 1857. 



ITO- SI- 
PETITION FOR ORDER SALE BY PUBLIC ADMINISTRATOR. (§ 88, 149.) 
State of California, San Francisco County. 

To the Hon. Thomas W. Freelon, County Judge, and Judge of the Probate Court of 
San Francisco county. 

Your petitioner, Robert C. Rogers, public administrator of San Francisco county, 
respectfully showeth unto your Honor, that by virtue of his office, and in accord- 
ance with the statute, i^ such case made and provided, he has taken charge of the 
estate of one James Sullivan, who died in the city of San Francisco, on the first day 
of June, A. D., 1857, intestate, as your petitioner is informed and believes, without 
known heirs. 

That said estate consists of two carriages, two horses of the value of about three 
hundred dollars, that there are claims existing against said estate for expenses of 
last illness, of funeral, for living of the said horses, repairs of a carriage, and other 
claims, which your petitioner has not sufficient knowledge of to now define. 

That the keeping of the horses entails a useless expense on the estate, that an 
inventoiy of the estate is herewith presented. 

Your petitioner, in consideration of the premises, prays that an order may be 
granted him to sell the property mentioned in the Inventory at public auction. 

ROBBBT 0. ROOEBS, P. A. 

San Francisco, June 9th, 1857. 

dtate of California, City and County of San Francisco, 88. 

Robert C. Rogers being duly sworn, says, that he has read the foregoing petition, 
and knows the contents thereof, that the same is true of his own knowledge, except 
as to the matters stated on information and belief, and as to these matters, he be- 
lieves it to be true. 

ROBEBT C. ROGBBS. 

Sworn to and subscribed befbre me, this 16th day of June, 1857. 
Dbkis Lyons, deputy county clerk. 



APPENDIX, ^diiig!^ 



ORDER FOR PRIVATE SALE, (j 162.) 



State of California, San Francisco County. 
In the Matter of the Estate^ 

of 1 ^ Probate Court. 

Francis X. Aubrey, Deceased. ) 



This day having been appointed for hearing the application of Jose Francisco 
Ghavis, administrator of the estate of said decedent, praying for an order to sell 
the personal property of said estate ; proof having been made by affidavit of the 
posting of notices of such application as heretofore ordered, and that a sale of said 
I)er8onal propeHy is necessary to close the administration of said estate. 

It is ordered, that said administrator sell at private sale the personal property 
returned in the inventory of said estate, viz : six shares of the Capital StocK of the 
California Steam Navigation Company. 

San Francisco, August 8, 1857. 



ISTO- 93- 
PETITION FOR SALE PERSONAL PROPERTY. (§ 149, 160.) 
State of California, County of San Francisco. 
In the Matter of the Estate ^ j^, y,^ p^„,,^t^ Court 

Boh-t Qreenhow, Deceased. ) ^^ *« C**™'? °' «"" Fianctaoo. 

The petition of Hall McAllister, executor of the above named decedent, respect- 
fully shows, that the said Robert (Qreenhow, departed this life on the twenty-seventh 
day of March, in the year 1864, leaving a will in which your petitioner was duly 
appointed the executor of said deceased. That subsequently, said will was duly 
admitted to probate by this honorable coart, and letters testamentary duly issued 
thereon to your petitioner as executor thereof. Your petitioner further showeth, 
that the decedent left no real estate, and that he has discovered that the personal 
estate of said decedent is insufficient to pay his debts. 

Your petitioner further showeth that all the personal estate of said deceased are 
cash assets, save nine shares of the stock of the San Francisco and Mission Dolores 
Plank Road Company, and that the sale of said nine shares is necessary for the 
payment of bona fide claims against the estate of said Robert Greenhow, deceased. 

Your petitioner further showeth that the said decedent in his said will, devised 
and beqaeathed all his estate to Mrs. Rose O'Neil Greenhow, his wife, and that the 
said Mrs. Rose O'Neil concurs in the prayer of this petition. 

Therefore, your petitioner prays for an order of this honorable court, authorizing 
the sale in due form of law of aforesaid nine shares of the stock of the San Fran- 
cisco and Mission Dolores Plank Road Company j and your petitioner will ever pray. 

Hall McAllister, 
Executor of R. Greenhow^ deceased. 
Dated, San Franeisco, July 21st, 1866. 

County of San Francisco, ss. 

On the 21st day of July, 1866, personally appeared before me. Hall McAUisteri 
the foregoing petitioner, who being by me duly sworn, did depose and say, that he 
has read the foregoing petition by him subscribed, and knew the contents thereof, 
and that the same was true of his own knowledge, excepting as to the matters 
therein stated on his information and belief, and as to these matters, he believed it 
to be true. 

Dbnis Ltohs, Deputy Clerk. 



Stetitof 

PMbftte 

Act. 



Xliv APPENDIX. 

X<TO- G4:- 

ORDER TO SHOW CAUSE ON SAME. (^ 160.) 

State of California, County of San Francisco. 
In the Matter of the Estate ^ i„ y^^ p^^,,^^^ ^^^^ 

Robert Qreenhow, deceased. ) "^ ** ^"""'^ **' ^ Francisco. 

Upon reading and filing the petition of Hall McAllister, executor of the last wil^ 
and testament of Robert Greenhow, deceased, for authority to sell certain personal 
property of said deceased, namely : nine shares of the stock of the San Francisco 
and Mission Dolores Plank Road Company, for the payment of the debts of said 
decedent ; it is Qrdered, that all persons interested in the estate of the said Robert 
Greenhow, deceased, appear before the probate court of the county of San Fran- 
cisco, at the court room thereof, in the city hall, of the city of San Francisco, on 
the 28th day of July, A. D. 1866, at eleven o'clock, in the forenoon of that day, 
then and there to show cause why authority should not be given to the said execu- 
tor to sell the aforesaid personal property ; and it is ordered, that a copy of this 
order be published in '^ the San Francisco Daily Sun," a newspaper of aforesaid 
county, for five successive days previous to said 28th day of July, A. D. 1866. 

T. W. Freelon, County Judge. 

Dated, San Francisco, July 21st, 1866. 



ORDER OF SALE, PERSONAL PROPERTY. (^ 161, 162, 163.) 

In the Matter of the Estate ^ In the Probate Court 

of > of the County of San Francisco, 



i 



Robert Greenhow, Deceased. ) State of California. 

Hall McAllister, the duly qualified executor of aforesaid Robert Greenhow de- 
ceased, having heretofore presented his application for authority to sell certain per- 
sonal property of the estate of said deceased, namely, nine shares of the stock of 
the San Francisco and Mission Dolores Plank Road Company, for the purpose of 
paying therewith honafde claims against the estate of said decedent ; And an order 
having been made on the 21st day of July, A. D. 1866, that all persons interested 
in the estate of said Robert Greenhow, deceased, should appear before this court, at 
the court room thereof, in the City Hall of the city of San Francisco, on this 28th 
day of July, A. D. 1866, at eleven o'clock in the forenoon of this day, then and there 
to show cause why authority should not be given to the said executor to sell the 
aforesaid personal property ; and further, that a copy of said order should be pub- 
lished in the San Francisco Daily Sun, a newspaper of aforesaid county, for five 
days previous to said 28th day of July, A. D. 1856. 

Now upon due proof of publication being made as ordered, and the same applica- 
tion being duly heard, it is hereby ordered that the aforesaid nine shares of the 
San Francisco and Mission Dolores Plank Road Company be sold at public auction 
at the salesroom of Messrs. Selover, Sinton & Co., on the north side of Merchant 
street, between Kearny and Montgomery streets, in the city of San Francisco, on 
Monday, the eleventh day of August, A D. 1866, at 12 o'clock, noon, of that day ; 
and that a copy of this order be published for ten days previous to said eleventh 
day of August, in the San Francisco Daily Sun, a newspaper of aforesaid county. 

Dated San Francisco, July 28th, 1866. 

T. W. Frbblon, County Judge. 



H 



N"0- S6- i 

ORDER CONFIRMING SALE MADE UNDER DIRECTION OF THE WILL. ^ 

(§178.) 

[In the Matter of, etc.] 

The executor herein having, in accordance with the direction of the will of said 
deceased made sales of certain personal and real estate, and having made his report 



APPENDIX. Xlv 

Sectioiu 

thereon to this court under oath, accompanied with proofs to the satisfaction of the ^ct.** 
conrt, that due notices were given and published according to law, and the said A 150. 
proceedings on such sales being examined by this court, and it appearing that said & iqq] 
sales were legally made and fairly conducted, and that the respective sums bid were £ 167*. 
not disproportionate to the value of the property sold, and that said proceedings 
were in all respects according to law : 

It is ordered that said sales be confirmed, and that conveyances be executed as Iv l'^* 
to the real estate so sold, to the purchasers thereof, as named in said report of sale. 

[Dated, etc.] 

M. N., Probate Judge. 



PETITION FOR SALE OF REAL ESTATE. (§ 154, igS.) 

State OF Calipobnta, ) In the Probate Court, 

Ik and pob the County op San Francisco, J * vuaw. \jmiu «, 

To the Hon. T. W. Freelon, Probate Judge in and for said county. 

Your petitioner, James Bowman, executor of the last will and testament of Wil- 
liam Cuml)erland, deceased, represents unto your Honor, that said William Cumber- 
land, was, immediately previous to his death a resident of th<8 county and state, 
and that he departed this life off the coast of Costa Rica, in Central America, on or 
about January, A. D. 1866, leaving a will, which will has been duly proven, and is 
now on file in the office of the clerk of this Honorable court, all of which will more ^ 
fnlly appear by reference thereto ; that said deceased died, leaving the estate herein- 
after referred to, and more particularly set out and described in the exhibits and 
schedules hereunto annexed, and expressly made part of this petition. 

That your petitioner is informed and believes, that John Cumberland, named in 
said will, the brother of the said deceased, is by the terms thereof, sole devisee of ^ 
the deceased ; that he now resides in the city of London, England, and that John ^ 
Cumberland is now about the age of fifty years, and that your petitioner knows of 
no other heir of the said deceased. 

That your petitioner knows of no personal property owned or possessed by the X 
said testator at the time of his decease. 

That he is informed and believes that said Cumberland died seized of the real 
estate, situate in the county of San Francisco, a full de.-icription of which, together ff 
with the condition and value of the respective portions and lots is contained in the 
schedule hereunto annexed marked "A," and made a part of this petition. 

That letters testamentary were duly issued to your petitioner on said estate, by 
this Honorable Court, on the day of May, A. D , 1866, and your petitioner ^ 

has duly qualified, according to law, and entered upon the administration of said 
estate. 

Your petitioner further ref Tesents that the schedule hereunto annexed, marked 
" B," and also made part hereof, sets forth the debts outstanding against the estate 
and said deceased, as far as the same can bo ascertained by your petitioner, and 
that no personal estate whatever has come, or now is in the hands of your petitioner 
for the payment of the debts of the said estate. 

That the expenses of the administration of said estate will amount to a large sum 
to wit : about, or near the sum of five hundred dollars. 

Your petitioner therefore alleges, that it appears from the facts aforesaid, and he 
avers that there is not sufficient personal estate in the hands of your petitioner, or 
in existence, to his knowledge or information, to pay the said debts outstanding 
against the said deceased and the expenses of the administration, and that it is 
necessary to sell the whole or greater portion of the said real estate for the pay- 
ment of the debts allowed and approved against the said estate, which now amount 
to a large sum, to wit : about six thousand dollars. 

Wherefore, your petitioner prays your Honor for an order, directing all persons 
interested to appear before your Honor, at a time and place to be specified in said 
order, not les»' than four nor more than ten weeks, from the time of making said 
order, to show cause why an order should not be granted authorizing and requiring 
your petitioner to sell so much of the real estate aforesaid of the deceased as shall 
be necessary to pay said debts so outstanding against the deceased as aforesaid, 
and that, at the time and place appointed in said order to show cause, or at such 



xlvi 



APPENDIX. 



Beetiont • 

^^^® time as the hearing may be adjourned to, on due prooft, and after a ftill hearing 
according to the statute in such case made and provided, an order of sale author- 
izing your petitioner to sell the whole, or so much and such parts of the real estate 
aforesaid as may be judged necessary, Tfor the purposes aforesaid, and to pay the 
debts, so outstanding as aforesaid, together with the expenses of administration) or 
beneficial, or that such other or ftirther order may be made as is meet in the pre- 
mises. HooB Sl Wilson, 

Attorneys for Petitioner. 
San Francisco, July, 1866. 

State of California, County of San Francisco, m. 

James Bowman, the petitioner above named, being duly sworn, deposes and says, 
that be has read the foregoing petition, and knows the contents thereof, and that the 
same is true^fhis own knowledge, except as to the matters therein stated on his 
information ^vbelief, and as to those matters he believes it to be true. 

James Bowmak. 
Subscribed and sworn to before me this 11th day of August, A D., 1856. 

Denis Lyons, deputy clerk. 
[Here follow the schedules referred to in the petition.] 



i 



3SrO. S8. 
ORDER TO SHOW CAUSE ON SUCH APPLICATION. (§ 166, 167 and see § 164.) 



In the Matter of the Petition of James' 
Bowman, executor of the last Will 
and Testament of William Cumber- 
land, deceased, for a sale of the Real 
Estate of the said deceased. 



In the Probate Court 

of the County of San Francisco, 

State of California. 



It appearing by the petition of the said executor that there is not sufficient perr 
sonal estate in his hands to pay the debts outstanding against the deceased and the 
expenses of administration, and that it is necessary to sell the whole or some portion 
of the real estate for the payment of such debts : 

It is therefore (nrdered by the Judge of said court, that all persons interested be 
and appear before him at the court room of said Probate Court on Monday, Uie 22d 
day of September. A. D. 1865, at 11 o'clock, A. M. of that day [that time being spe- 
cially appointed for the hearing of said petition], to show cause why an order should 
not be granted to the said executor to sell so much of the real estate of the deceased 
as should be necessary to pay such debts, and that a copy of this order be published 

at least four successive weeks in , a newspaper printed and published in 

the city of San Francisco. 

August 18th, 1856. T. W. Fbbblon, County Judge. 



XTO. 99. 

ORDER OP SALE OP REAL ESTATE. (} 168, 161, 162, 163, 78.) 



In the Matter of the Estate 

of 

William Cumberland, Deceased. 



I 



In the Probate Court 

in and for the County of San Francisco, 

State of California. 



It appearing to the court, upon the application of James Bowman, executor of the 
last will and testament of William Cumberland, deceased, that he presented to and 
filed in this court at the August term thereof, A D. 1866, his petition in writing 
duly verified, showing that claims had been allowed against the said estate, and 
that there is not sufficient personal estate in the hands of the said executor to pay 
the debts outstanding against the deceased and the expenses of administration and 
that it is necessary to sell the whole of the real estate for the payment of such debts ; 
And upon such petition and application of said executor, it having been at said 
August term, 1856, ordered by the Judge of this court that all persons interested 
should be and appear before him at the court room of said Probate Court on Mon- 
day the 22d day of September, A. D. 1856, at eleven o'clock, A. M., of that day 
[that time being specially appointed for the hearing of said petition] to show cause 



APPENDIX* Xlvii 

Sectionf 

why an arde)* should not be grunted to the aaid execatot to sell so much of the real ^^^ 
estate of the deceased as shall be necessar}' to pay such debts, and that a copy of 
the said order to show cause should be published at least four successive weeks in a 
newspaper published in the city of San Francisco; And on that day, at the time and 
place named in the said order, to show cause, upon due proof of the publication of a 
copy of the said order to show cause in pursuance thereof. 

The court having fully heard and examined the allegations and proofs of the 
petitioner, and no person having opposed the same, and it appearing to the court 
« upon such hearing and examination and proofs that claims to a large amount have 
been duly allowed and established against said estate and are justly due by said 
estate to divers persons, and that a sale of property is necessary for their payment, 
and it further appearing to the court that there is not sufficient personal property in 
the hands of the said executor to pay the debts outstanding against the deceased 
and the expenses of administration, aud that it is necessary to sell the whole of the 
real estate for the payment of such debts, and it further appearing that no good 
reason exists why the said order of sale should not be granted as prayed for in said 
petition ; Now, on this 22d day of September, A. D. 1856, it is ordered and ad- 
judged by the court that said James Bowman, executor as aforesaid, be and he is 
hereby authorized to sell the following real estate of said William Cumberland de- 
ceased, at public auction to the highest bidder, on the following terms, to wit : for 
cash at the time of sale, to be paid on the day of sale or the day following. 

And it is further ordered that before making such sale the said James Bow- 
man, executor as aforesaid, shall give an additional bond with two or more suffi- 
cient sureties, in the penal sum of five thousand dollars, conditioned that the said 
executor shall faithfully execute the duties of the trust according to law. 

That the said executor shall give notice of the time and place of holding such 
sale, according to the statute in such case made and provided, aud shall in all things 
proceed, conduct and manage said sale as by the statute in such case is made and 
provided, is directed and required, and due return of his proceedings to the Pro- 
bate Judge in and for the said county of San Francisco-make, at the next term of the 
probate court after such sale. v 

The following is the real estate hereby authorized to be sold, being situated in the . 
county of San Francisco and State of California, viz : 

1. The undivided half of the lot situate, lying and being in the city of San Fran- 

cisco, known and described on the one hundred vara survey therof as the 
one hundred vara lot number one hundred and sixty-one [161.] 

2. The one undivided half of a lot of land situated in the county of San Francisco, 

at the Mission Dolores, and formerly occupied by said Cumberland and John 
Hart, also since deceased, as a milk ranch, with buildings thereon, the lot 
being f fty varas square. 

3. The one undivided half in a certain pre emption claim near the Mission Dolores, 

taken up and occupied jointly by said Cumberland and Hart, both deceased. 

T. W. Freelon, County Judge. 



NO. lOO. 
RETURN OF PROCEEDINGS ON SALE. (} 169.) 

To the Honorable Probate Court, in and for the county of San Francisco, State of 
California : 

James Bowman, executor of the last will and testament of William Cumberland, 
deceased, represents to this Honorable Court, that at the September term of this 
court, viz : on the 22d day of September, 1866, an order of sale was duly made, on 
the application of this petitioner, of the real estate belonging to the estate of 3aid 
William Cumberland deceased, which real estate is mentioned and referred to herein 
below and in the schedule hereunto annexed and made part hereof, as by the records 
and flies of this hon. court will more fully appear, reference thereunto being had. 

That in pursuance of said order of sale and the statute ia such case made and 
provided, your petitioner, through John Middleton, an auctioneer, did make the 
Bales respectively and separately of the said lands and premises in the schedules 
hereunto annexed, mentioned and described, and to the persons therein opposite 
6ach piece named and for the prices therein set forth ; that said sale was made after 
due notice aecording to the statute in such case made and provided, and at public 
auction at the auction room of said John Middleton, in the city of San Francisco, 



Xlviii APPENDIX. 

Sections 

^Act.** ^^ Monday, November 10th, A. D. 1856, at 12 o'clock, M.; that said purchasers 
were respectively the highest bidders for cash at the time of the sale. 

That said sale was legally made and fairly conducted, as your petitioner is informed 
and believes, and that the sums respectively bid were not disproportionate to the value 
of the property sold, and that he is informed and believes that no sums respectively 
exceeding such bids, to the amount of ten per centum, exclusive of the expenses of 
a new sale, could be obtained on another sale on said order. 

And your petitioner further represents that the schedules hereunto annexed, marked 
" A," " B " and " C," show to the court a correct account of said sales, including 
the amounts respectively bid for such real estate, the expenses of conducting such 
sales and the net proceeds : 

Wherefore your petitioner prays that this Hon. Court will make an order confirm- 
ing the said sales and directing conveyances to be executed respectively to the said 
purchasers, conveying all the right, title, interest and estate of the said testator in 
the premises respectively at the time of his death. 

And further, that the account of sales herewith furnished be also filed, approved 
and allowed by this Hon. Court. 

Jambs Bowman, Executor, etc., 

By HooE &> Wilson, his Attorneys. 

State of California, City and County of San Francisco, ss. 

James Bowman, executor of the last will and testament of William Cumberland, 
deceased, being duly sworn deposes and says that he has read the foregoing petition, 
return and account of sales, and knows the contents thereof, and that the same are 
true of his own knowledge, except as to the matters therein stated on his information 
or belief, and as to those matters he believes them to be true. 

Sworn to and subscrioed before me, this 17th 1 

day of November, A D. 1866, > James Bowman. 

Denis Lyons, Deputy County Clerk. J 



3NrO- lOl- 
ORDER CONFIRMING SALE OF REAL ESTATE. (§ 171, 173, 166, 167.) 



In the Matter of the Estate ^ In the Probate Court, 

of I "^ *^^ ^^^ *^® County of San Francisco, 

William Cumberland, Deceased. } State of California. 



It appearing to the court, on the application of James Bowman, executor of the 
last will and testament of William Cumberland deceased, and by the return and ac- 
count of sales by said executor, that in pursuance of the order of sale of the real 
estate of said testator, heretofore made, that said executor on the tenth day of No- 
vember, A. D. 1856, at twelve o'clock, M., sold the premises hereinafter described 
to the persons and for the prices hereinafter mentioned, viz : 

1. The undivided half of the lot situate, lying and being in the city of 

San Francisco, known and described on the one hundred vara 
lot number one hundred and sixty-one [161] to Falkner, Bell & 
Co , for $2,500 00 

2. The one undivided half of the lot of land situate in the county of San 

Francisco, at the Mission Dolores, and formerly occupied by said 
Cumberland and John Hart, since deceased, as a milk ranch, 
with the buildings there on, being fifty varas square, to Fred- 
erick Green, for ------ - 250 00 

3. The one undivided half of a certain pre-emption claim near the Mis- 

sion Dolores, taken up and occupied jointly by said Cumberland 

and Hart, both deceased, to Frederick Green, for - - 26 OO 



Total gross proceeds, - - - - $2 775 00 

And it further appearing and having been proven, to the satisfaction of the court 
that due notice of the time and place of holding said sale was posted up in three of 
the most public places in the said county of San Francisco, and published in the 
Daily Alta California, a newspaper printed and published daily in said county, for 
three weeks successively next before said sale, describing the said lands and ten- 



APPENDIX. Xlix 

«ment8 with common and soffioient oertainty, and that said sale was made ait pahh ^*J|^** 
lie aactioQ in the city of San Francisco, and m all things in conformity with the 
statute in such case made and provided, and that the said purchasers were respect- 
irely the highest bidders and that they have respectively complied with the terms 
of siUe ; and it furthermore appearing to the court that said sale was legally made 
and faurly conducted, and that the sums respectively hid were not disproportionate 
to the value of the property sold, and that no sums exceeding the said respective 
bids can be obtained on another sale ; and no person interested in the estate having 
filed or made any written objections to ti^e confirmation of the said sale: 

It is therefore order^ by the court, that the said sales to said respective pur^- 
chasers be and the same are hereby respectively approved and confirmed, and the 
said executor is hereby ordered and directed to execute and delrvw to the said re- 
spective purchasers, deeds and conveyances for the respective parts by them pur- 
chased, conveying to them respectively all the right, title, interest and estate of the 
said testator in the premises at the tmie of his death. 

T. W. Freelon, County Judge. 



IMO- lOS. 

OFFER OF TEN PER CENT ADVANCE ON SALE. (§ 169, 170.) 



In the Matter of the Estate ^ In Probate Court, 

of > City and County of San Francisco, 

James H. Wingatc, Deceased. ) State of California. 



The petition of J. Mora Moss respectfully shows, that he is of opinion that the 
water lot known as lot six hundred and sixty-one [661] on the official map of the 
city of San Francisco, sold by order of the probate court of this county to O. 
Pratt, Esq., by John Middleton, auctioneer, by direction of the administratrix of 
James H. Wingate's estate, for the sum of $875, at his late sale on the 19th day of 
April, A. D. 1^8, was sold for a sum disproportionate to its true value, and the sub- 
scriber hereby offers to give for said lot an advance on said bid and sale, a sum of 
at least ten per cent., exclusive of the expenses of a new sale, should this court di- 
rect such sale to be made, and the subscriber will insure the same ; and the sub- 
scriber further says, that he is agent for the parties holding the mortgage on said lot. 

J. Mora Moss. 
Daied May 17th, 1658, 



N"0- 103- 

ORDER OF RB-SALB. (^ 169.) 



In the Matter of the Estate ) In the Probate Court, 

of > City and County of San Francisco, 

James H. Wingate, Deceased. ) State of California. 

Upon reading and filing the report of sales made by Helena Wingate, adminis- 
tratrix of the estate of James H. Wingate, in pursuance of the order of this court, 
made on the 28th day of December, A. D. 1857, and it appearing to the court that 
such sale was legally and fairly made, and that so muoh of the property designated 
in said report as sold to Philip McShane, for the sum of $760, being the water lot 
known as lot numbered (756) seven hundred and fifty-six, on the ofiSoial map ol 
said city of San Francisco, was sold for a sum not disproportionate to its value, and 
BO objections having been made to the confirmation of said sale, and on motion of 
Annis Merril, attorney for said administratrix, it is ordered, adjudged and decreed, 
that the said sale of said water lot, numbered (756) seven hundred and fifty-six, on 
itte official map of said San Francisco, be, and the same hereby is confirmed and 
declared valid, and the said administratrix is hereby ordered and directed to make 
conveyance of ihe same to the said Philip McShane, his heirs and assigns, as re- 
quired by law. 

And it appearing to the court, that so much pf said property mentioned in said 
lepori as d^ribed to be tiie water lot numbered (661) six hundred and sixty H>ne 
on the official map of said San Francisco, sold to 0. C. Pratt, for the sum of $87£i, 

O 



1 APPENDIX. 

Beetionfl 

Aet. was sold for a sum disproportionate to its true value, and that a sum exceeding said 
bid therefor of at least ten per cent, exclusive of the expenses of a new sale may 
be obtained for said lot, and on motion of Annis Merrill, counsel for said adminis- 
tratrix, it is hereby ordered, adjudged and decreed, that said sale be, and the same 
hereby is vacated, and the said administratrix is hereby authorized and directed to 
sell, or cause to be sold, at public auction, according to law, to the highest bidder 
for cash, at some public place, in the city and county of San Francisco, after giving 
the notices of the time and plaoe of sale as required by the statute, all that water 
lot, designated on the official map of the city of San Francisco as lot numbered 
(661) six hundred and sixty-one, and that said administratrix report said sale to 
this court as required by the statute in such case made and provided. 
May 17th, 1858. M. G. Blakb, Probate Judge. 



3NrO. 104. 

REPORT OF SALE. (^ 169.) 

In the Matter of the Estate ^ j^ ^^^ ^^^^^^ ^^^^ 

Elisha Stan<^ih, Deceased. ) ^^^ '^« ^'^^ *^^ ^^^'^ ^^ ^^ Francisco. 

The undersigned, Bei\jamin Brewster, administrator of said estate, respectfully 
reports, — 

That in pursuance of an order of this court, made and entered on the ninth day 
of March, A. D. 1867, he sold on the sixth day of April, A. D., 1857, at public 
auction, to the highest bidder for cash (due and legal notice of the time and place 
of making said sale, having been given as required by statute as will fully appear 
by affidavits on file) the following described real estate, belonging to the estate of 
Elisha Standish, deceased, to wit : 

That certain piece or lot of land situate in the city of San Francisco, on the nor- 
therly side of Union street, between Powell and Mason streets, commencing etc., to 
John Benson, Esq., for the sum of four hundred and twenty -five dollars, he being 
the highest bidder therefor, and said sum being the highest amount bid for said 
property. 

That said sale was fairly conducted, and that the said sum bid was not dispropor- 
tionate to the value of said property. 

The undersigned, therefore prays that said sale be confirmed by an order of this 
court, and that the court direct a conveyance of said property to be executed to 
said purchaser. 

San Francisco, May 18th, 1857. 

Bbnj. Bbbwstea. 

Sworn to and subscribed before me, this 8th day of May, A. D. 1857. 
F. J. Thibault, Notary Public. 



3^g■0- 106- 

OBJECTIONS TO CONFIRMATION OF SALE. (§ 170.) 
In the Matter of the Estate ^ j^ p^^^^ ^^^^ 

P B Dec as d i ^^ *^® County of San Francisco, State of California. 



M. N., respectfully represents to the court, that at the sale advertised in and by 
the printed notice hereto annexed, held at the auction rooms of John Middleton, in 
this city, at 12 o'clock, M., he did bid for the land therein described, the sum of 
f 3,000, which being the highest bid therefor, he became the purchaser of said 
land, and was so announced at said sale. 

That his purchase as aforesaid was of an indefeasible estate in fee, but that since 
said sale, and not before, and by the advice of his counsel, he is advised, and has 
ascertained that the title attempted to be sold as aforesaid, is defective. 

1st. Because, on the hearing of the petition for probate of the will in the estate 
aforesaid, no attorney was appointed to represent the non-residents and minors 
interested in said estate, although it appears by said petition that there were such 
Bon-residents and minors. 



APPENDIX. li 

Sectioiu 

2d. That the witness did not testify at said hearing that the exection of said ^'^.^^ 
will hy the decedent said P. B., deceased, was without fraudulent representations, 
according to the statute in such case made and provided. 

3d. It does not appear that a copy of the order to show cause upon petition 
therein for sale of real estate was served upon the guardian of the heirs of de- 
cedent. 

The said M. N., purchaser as aforesaid, excepts to the proceedings aforesaid^ and 
the report of said sale upon the grounds ahove specified. 

Dated, San Francisco, Dec. 14, 1857. M. N. 

By his attorneys, Saundbbs Sl Hbfbubn. 



3Nro. loe. 

ORDER OVERRULING OBJECTIONS. 

In the Matter of the Estate 

of 

P. B., Deceased. 

And now, January 11th, 1868, the court having duly considered the exceptions 
filed by M. N., heretofore, to wit: on the 14th December last, to the confirmation 
of the sale of the real estate of said deceased. It is ordered ac^udged and de- 
creed that the same be, and they hereby are overruled. 

T. W. Frbblon, County Judge. 



ORDER AFTER CONTEST, CONFIRMING SALE. (§ 171.) 
In the Matter of the Estate ^ j^ p^^^,^^ ^^^^ 

P. B. Deceased. ) ^^^^ *°^ County of San Francisco. 

An order having been duly made by the probate court of the city and county of 
San Francisco, on the 16th day of November, 1857, authorizing A. B., the executrix 
of the last will and testament of P. B., deceased, to sell the real estate, whereof the 
said testator died seized, mentioned and described in the said order, to enable her 
to pay the mortgage debt therein mentioned, and the said executrix having made 
return of her proceedings upon the said order, by which said return it appears that 
under said order, the said executrix, after having posted and published due notice 
of the time and place of holding said sale according to law, did, on the 9th day of 
December, 1857, at 12 o'clock, noon of that day, at the auction room of John Mid- 
dleton, in the said city and county of San Francisco, being the time and place men- 
tioned in said notice, sell at public auction, the whole of the premises mentioned 
and described in said order, and that she did, on said sale, sell the premises de- 
scribed in said order as follows : 

To M. N., for the sum of $3,000, that being the highest and best price bid, and he 
being the highest and best bidder for the same. 

And the said M. N. having heretofore filed bis written objections to the confirma- 
tion of sale, which having been duly agreed by his attorneys, Saunders & Hepburn, 
and by Sidney Y. Smith, attorney for the said executrix, and the same having been, 
after full consideration thereof by the court, overruled. 

Now, the said executrix having this day appeared before the said probate court 
by Sidney V. Smith, her attorney, and having moved for an order confirming said 
sale, and no one appearing to make opposition to the confirmation thereof, and it 
being shown to the court that no objection in writing to the confirmation of said 
sale have been filed, except those so as aforesaid filed by the said M. N., and so as 
aforesaid overruled by the court ; and the court having examined the proceedings 
upon the aforesaid order of sale, and it appearing to the court that the said sale was 
legally made and fairly conducted, and that the same bid was not disproportionate 
to the value of the property sold. It is ordered and decreed, and the court, pur- 
suant to the provisions of the statutes, in such case made and provided, does hereby 
order and decree, that the said sale of the said real estate, so as aforesaid made by 



lii APPXH9IX. 



Protata 



"^^ the exjBCiitriz, be, and the same 14 hereby confirmed. And tbe conrt doos fbrfher 
order and direct the said A. B., executrkic as aforesaid, to execute a oomveyance of 
the said real estate so sold by her, to the said M. N., the piurcha«er thereof. 
Iq open eoort^ this 18th day oC Janoary, 1868. 

T. W. FBBE1.0V, County Jadgc. 



RETURN OF SALE BY GUARDIAN WITH PROOFS OF NOTICR (6 169, 166* 

167, 173.) 

WEDNESDAY, March 24th, at 12 o'clock, M.— GUARDIAN'S SALE.— In the 
probate court of the city and county of San Francisco, state of Caliibmia. — ^In the 
matter of the estate of Henry B. Lafitte, an insane person. 
UK 9) Notice is hereby given, that, in pursuance of an order of the probate court of 
said city and county, made the 1st day of March, A. D., 1858. the undersigned. 
Guardian of said insane person, will sell at public auction, to the hin^est bidder, on 
Wednesday, the 24th day of March, 1858, at 12 o'clock, M., at the auction room of 
H. A. Cobb, No. 102 Montgomery street, the following described real estate, sftuate, 
lying, and being in said city and county, etc. 

H. A. Cobb, Guardian. 

State of California, City and County of San Francisco, m. 

R. H. Sinton, being first duly sworn, deposes and says, that he resides in the dfy 
of San Francisco ; that he assists in the real estate department of the auction house 
of H. A. Cobb, 102, Montgomery street, that he posted exact and true copies of the 
annexed advertisement of sale in three most public places in said city, from March 
(2nd) second, 1858, to the (24th) twenty-fourth of the same month, inclusive. That 
' he attended said sale, that the attendanee thereat, and the bidding, was good, and that 
the sum at which said property was knocked down^ was the best price that could 
have been obtained for the same. 

R. H. SiSTON.. 

Sworn and subscribed to before me, this 29th day of March, A. D., 1858. 
Geo. T. Eiroz, Notary Public. 

WEDNESDAY, March 24th, at 12 o'clock, M.— GUARDIAN'S SALE.— In the 
probate court, city and county of San Francisco, State of California. — In the mEat- 
ter of the estate of Henry B. Lafitte. an insane person. 
"B." Notice is hereby given, that, in pursuance of an order of the probate court of 
said city and county, made the 1st day of March, A. D 1858,. the undersigned, 
Guardian of said insane person, will sell at public auction, to the highest bidder, on 
Wednesday, the 24th day of March, 1858, at 12 o'clock, M„ at the auction room of 
H. A. Cobb, No. 102 Montgomery street, the following described real estate, situate, 
lying, and being m said cit^ and comity, etc. 

H. A. COBB, Guardian. 

State of California, City and County of San Francisco, ss. 

Robert White, of the city and county of San Francisco, being duly sworn, de- 
poses and says, that he is the principal clerk in the office of the planter and pub-- 
lisher of the San Francisco Herald, a daily and weekly newspaper, published daily 
in the city of San Francisco, in the county aforesaid, and has charge of the adver- 
tisements therein ; that a notice, of which the annexed is a printed copy, has been 
regularly published in the said paper at least three successive weeks, commencing 
on the 2d day of March, 1858, and ending on the 24th day of March, 1858. 

ROBBBT WbITK. 

Subscribed and sworn before me, this 27tfa day of March, 1858. 
F. J. Thibault, Notary Public. 

In the Matter of the Estate 1 

of ^ Probate Court, 

Henry B. Lafitte, an insane * in and for the City and County of San Francisco, 
person. J 

To the Hon. Thomas W« Freek>n, County Judge, and tz-qfficio Probate Judge In and 
for the City and County of San Francisco^ 

Henry A. Cobb, guardian of the person and estate &( Henry B. Lafitte, an insane 
person, respectfully represents Uiat, pursuant to an order heretofore <»i the Ist day 



APPENDIX. 



1 •.• «^ 
1111 



SeetioD* 
Probate 



of Mavcb, A. D. 1868, entered in said proce^din^, anthoriziDg iShe sale of certain ^^t. 
real estate therein described, he caused a notice of the time and place of such sale 
to be posted in three of the most public places in the city and county of San Fran- 
cisco ; also to be published in the San Francisco Herald, a newspaper published in 
said city and county, fbr three weeks successively, next before such sale, as will 
appear by the two affidavits hereto annexed, and made a part of thra report and 
marked respecthrely " A " and " B " ; that on the day, in said' notfceg mentioned, 
viz: the 24th day of March, A. D. 1858, at 12 o'clock noon of said day, betw^een 
the hours Gf nine o'clock in the morning, and the setting of the sun, at the auction 
rooms of H. A. Cobb, number 163 Montgomery street, in said city and county of 
San Francisco, did sell at public auction, said premises, described in said order of 
sale, as fo{k>ws : together with the buildings thereon, tc Jacob WilHams, for the sum 
of twenty-two hundred dollars, that being the highest sum bid for the same. 

And the said guardian doth ftirther report and return to your Honor, that the • 
said sale was in all respects legally made and fairly conducted. 

AQ which is respectfully submitted. 

H. A. GbBB, Quardian. 

Dated March 20tb, 1868. 



3sro, 1O0- 

OBDER FOR RE-SALE ON FAILURE OF PURCHASEB TO TAKE Hia 

DEED. (See § 171 and note;) 



In the Matter of the Ooardianahip ) 

of J 

Henry B. Lafitte, ank insane person. ) 



In the Probate Court 
of the County of San Francisco. 



In Open Court, October 27th, A. D. 1856, 

And now comes Henry A. Cobb, guardian of the person and estate of the above 
naoned Henry B. Lafitte, and presents his petition to tlikis eourt, showing that the 
sale of the real estate of Henry B. Lafitte, heretofore named by him the said guard- 
ian imder an order of this court, enteredon the 21st day of July, 1856, has becoiae 
inefifectual for the reason that the parchaser at said sale has refOsed to comply with 
the %erm» thereof*, ana further, that he is an irresponsible person,, and unable to pay 
for the property by him purchased at said sale, askd it appearing to the satbHa^tioD 
of the court, that the said purchaser has refused to comply with the tense of said 
sale» and also that he is unable to pay for said pr<^rty and is wholly irresponsibie : 
It » therefore ordered, that the tale of the property cd said Henry B. Lafitte made 
by Henry A. Cobb, his guardian, to one E. Carman, on the 23d day of August, 1866, 
be and the same is hereby vacated, set aside and annulled *, and it is aliM> ordered, 
that the order of this court, made on the first day of September, 1856v confirming 
said sale, be and the same is hereby set aside and annulled ; And it is further ordered, 
that ihe said Henry A. Cobb, guardian of the said Henry B. Lafitte, be authorized 
and empowered and he is hereby directed to re-seU said property under the order of 
thie court, entered on the 2l8t day of July, 1856, and to do aU things needfuil and 
proper in the premises under said order, as fully as though the said sale, .and order 
confirming the safiae, had not^ been made. 

T. W. ¥keelot». County Judge. 



OBJECTIONS TO GRANTING ORDER OF SALE. (§ 170.) 



In the Probate Court 
of the County of San Francesco. 



In the Matter of the Petition of Abia A. > 
Selover, for an order to show cause 
why an order of sale of the real es- 
tate of Jas. Beckett, deceased should 
not be made, etc 

To Thomas W. Freelon, Esquire, Probate Judge of the County of San Francisco : 

James J. Beckett, an infant under the age of fourteen years, and the sole heir-at- 
law of the said James Beckett deceased, by Charles Gallagher, hia guardian, showa 
for caoae why the order in the petition of Abia A. Selover, prayed for, should not 



liv APPENDIX. 

8«etioiis 

^Act.^ be granted, the following objections and allegations of law and fact. And first he 
shows these objections of law, viz : 

1. That the said petitioner does not set set forth facts sufiScient to authorize the 
order prayed for. 

2. That it does not show that the said Selover is a party entitled to petition for 
a sale of the said real estate. 

8. That it does not show that any administrator of the said estate has been duly 
appointed and qualified. 

4. That it does not show that the administrator of the said estate has ever ac- 
counted for his administration, nor that any proceedings have been taken to compel 
him to account. 

5. That it does not show that the said petitioner has a valid or any claim against 
the said estate. 

6. That it does not set forth facts sufficient to give this court jurisdiction of the 
application made by the said Selover for a sale of the real estate. 

7. That it does not show with sufficient or any certainty, that the personal estate 
in the hands of the said administrator is not sufficient to pay the allowance to the 
family, the debts outstanding against the deceased, and the expenses of adminis- 
tration ; or that a sale of the whole or any portion of the real estate of said decedent 
is necessary for the payment of such debts. 

8. That the order to show cause is irregular and insufficient. 

And the said James J. Beckett, an infant, etc., sets forth the following as his ob- 
jections and allegations in fact, viz : 

1. That the said Abia A. Selover is not the owner or holder of any valid or lawM 
claim against the said estate, and that the said estate is not indebted to the said 
Selover in the amount in his said petition alleged, nor in any amount whatever, in 
manner and form as the same is in the said petition alleged. 

2. That the said estate is not indebted to Gregory Yale upon a judgment in his 
favor against Samuel Flower, the administrator of said estate, in the District Court 

•oftheTwelfth Judicial District, for $2,709, together with $314 18-000 costs, as in 
the said petition alleged, nor in any amount whatever. 

8. That the said estate is not indebted to the estate of James 0. Hackett deceased, 
in the amount of $2,600, as. in the said petition alleged, nor in any amount what- 
ever. 

4. That the alleged claim of Henry H. Byrne in the said petition described was 
not a valid or lawful claim against the said estate, and the same was never duly 
presented to the said Flower, administrator, and not to the said Thomas W. Free- 
Ion, Esq., Probate Judge, as required by law, and by them, and each of them allow- 
ed, and the said allowance duly endorsed in writing upon the same ; and the said 
estate never was indebted to the said Byrne in the amount of $15,000, as in the said 
petition alleged, nor in any amount whatever; and the said claim of the said Byrne 
never was assigned to the said petitioner as the same is alleged in the said petition. 

4 1-2. That the lawful expenses of the administration of the said estate do not 
now, nor will they amount to the sum of $15,000, nor to any such sum. 

5. That the personal estate in the hands of the said administrator, and the rents 
daily accruing from the real estate of the said decedent, will be amply sufficient to 
pay off and discharge all the just and lawful debts and liabilities of the said estate, 
and that a sale of the said real estate, or any portion thereof, is unnecessary ; and 
is also inexpedient at the present time, which is a period of uncommon and disas-' 
trous depreciation in the value of real estate in the State of California, and espe- 
cially in the county of San Francisco. 

6. That James Beckett, the said decedent, was not at, or immediately previous to 
his death, a resident of the county of San Francisco, as in the said petition alleged. 

7. That letters of administration never were duly issued to the said Samuel 
Flower ; and the said Flower never was duly appointed and qualified as administra- 
tor of the said estate. 

8 That the said alleged claim of Henry H. Byrne, is barred by the statute of 
limitations, the same not having accrued within the period of two years before the 
death of the said decedent. 

9. That as to the several claims in the said petition and the schedules thereto an- 
nexed, set forth and alleged to be outstanding debts against the said estate, the 
same are not valid and lawful claims against the said estate, nor is any of them a 
valid or lawful claim. 

10. That there is no proof publication of the said order to show cause, as in the 
said order directed according to law. 

And the said James J. Beckett, an infant, etc., sets forth and alleges the foregoing 



APPENDIX. 



Iv 



allegations and objections of fact, either upon bis information and belief, or be- 
cause as to the allegations in the said petition to which the same are responsive, he 
has no information sufficient to form a belief, and therefore, he denies the same and 
requires the said petitioner to make due proof thereof. 

Wherefore, he prays that these, his said allegations and objections may be duly 
examined and considered by the said court, and that the order heretofore made, be 
vacated, and for such further order as may be proper. 

E. Cabbbblt, for Respondent. 



SeetioBfl 

Probate 

Act. 



a>TO. 111. 

ORDER OP SALE OF PERSONAL AND REAL ESTATE AFTER CONTEST. 

( 164, 161 to 163, 73.) 

State of Caliomia, County of San Francisco, m. 

In the Matter of the Estate 
of 



Li the Probate Court of said County. 
Term, A. D., 1856. 



James Beckett, deceased. Pe- 
tition of A. A. Selover, a credi- 
tor for the sale of personal and 
real estate of tbe estate of said 
deceased. 

Present : the Hon. T. W. Freelon, Probate Judge. 

It appearing to the court upon the petition and application of Abia A. Selover, 
that he is one of the acknowledged creditors of the said estate of James Beckett, 
deceased, and that said Selover, at the September term of this court, A. D. 1866, 
filed his petition in writing, duly verified, showing that claims had been allowed 
against the said estate, and that a sale of the personal property is necessary for 
their payment, and also for the expenses of the administration, and that there is 
not sufficient personal property or estate in the hands of the administrator of said 
estate to pay the debts outstanding against the deceased and the expenses of admin- 
istration, and alleging, that it is necessary to sell the whole, or some portion of the 
real estate for the payment of such debts, and that the administrator has neglected 
to apply for an order of sale. Ajid upon such petition and application of said Selo- 
ver, it having been at said September term, 1865, ordered by the Judge of said pro- 
bate court, that all persons interested, should be . and appear before him at the 
court room of said probate court, on Monday, the 22d day of October, A. D., 1855, 
at 11 o'clock, A. M., of said day, (that time having been specifically appointed for 
the hearing of said petition,) to show cause why an order should not be granted to 
the administrator of said estate, authorizing and requiring him to sell the personal 
property and so much of the real estate of said deceased as should be necessary to 
pay such debts, and that a copy of said order to show cause, should be published 
at least four successive weeks in the daily Placer Times and Transcript^ a newspa- 
per, printed in the city of San Francisco. 

And on that day, at the time and place named in said order, to show cause, upon 
due proof of the publication of a copy of the said order, in pursuance of said or- 
der, and on divers other days and times to which the hearing of said matter was 
from time to time duly adjourned, the court having fully heard and examined the 
allegations and proofs of the petitioner, and also the allegations and proofs of Sarah 
0. Beckett, claiming as the widow of James Beckett, deceased, and James J. Beck- 
ett, claiming as infant heir of James Beckett, deceased, by C. Gallager, his guardian, 
ad litenif in opposition thereto, and the arguments of their respective counsel ; and 
it appearing to the court upon such hearing and examination, and proofs, that 
claims to a large amount have been duly allowed and established against said estate 
to divers persons, and that a sale of property is necessar}' for their payment ; and 
it further appearing to the court, that there is not sufficient personal property to pay 
the debts outstanding against the deceased and the expenses of administration, and 
that it is necessary to sell the whole or larger portion of the real estate for the pay- 
ment of such debts ; and it further appearing that the administrator of said James 
Beckett, deceased, has neglected to apply for an order of sale of said personal or 
real estate of said deceased; and it further appearing that said petitioner, Abia A. 
Selover, is the owner of large claims against said estate, duly established, proven, 
allowed and ranked among the acknowledged debts of said estate, as more particu- 
larly set forth in his said petition. 



Ivi APPENDIX. 

ffBciiom 

Probate j^^ (4 ftirtber appearing upon the examination of ihe allegations and proofs of 
^^' «aid A. A. Selover, of said Sarah 0. Beckett and James J. Beckett, 4;hat bo good 
reason exists why the said order of sale should not be granted as prayed for to said 
Samuel Flower, administrator of the estate of James Beckett, deceased. 

Now, on this 28th day of December, A. D., 1856, to whidi day the said cause was 
duly adjourned* 

It is therefore ordered and adjudged by the court, that said Samuel Flower, ad- 
ministrator of the said estate of James Beckett, deceased, be authorized, and he is 
hereby required to sell the following personal property of said estate, at public 
auction, after public notice given for at least ten days, of the time and place of sale ; 
said sale to be made in front of the city hall, on Kearny street, in the city of San 
Francisco ; the notice of said sale to be given by publication in the San Francisco 
DaQy Herald, a newspaper printed and published in the said city of San Francises. 

The following U a list of the personal property hereby authorized and required to 
be sold, vi2 : 

One gold watch and chain; one dianrond ring; one small gold ring; one gold 
pencil ; one gold fob chain ; one porte-monnaie. 

And it is further ordered and adjudged by the court that said Samuel Flower, 
administrator, as aforesaid, be authorized and required to sell the following real 
estate of said James Beckett deceased, at public auction to the highest bidder, on 
the following terms, to wit : one-half cash at the time of sale and the balance in six 
months, with interest at one per centum per month from the day of sale until matu- 
rity, and after maturity at two per centum per month until paid, or the whole in 
caih, at the option of the purchaser. All sums required to be pad in ca^sh shall be 
paid on the day after the sale and the credit allowed shall begin to run fh)m the 
day of sale ; all sums on which credit shall be given shall be secured by the par- 
chaser by note and mortgage on the land purchased and the acts of sale, and secur 
Tity shall be at the expense of the purchaser. 

And it is further ordered, that before making such sale, the said ^muel Flower, 
public administrator as aforesaid, shall give an additional bond with two or more 
sufficient sureties, in the penal sum of fifty thousand dollars, conditioned and exe- 
cuted in like manner, as additional bonds are required to be when executed by or- 
dinary administrators, on the grant of an order of real estate by the probate court. 

That said administrator shall give notice of the time and place of holding such 
sale according to the statute in such .case made and provided, and shall in all things 
proceed, conduct, and manage said sale as by the said statute in such case made 
and provided, and due return of his proceedings to the probate judge m and for 
said county bf San Francisco, make, at the next term of this court after such sale. 

The following is the real estate hereby authorized and required to be sold, being 
situated in the city and county of San Francisco, and State of California. 

[Here follows description of the property.] 

T. W. Fbbbloit, County Judge. 

San Francisco, December 28th, 1865. 



ITO- lis. 



PETITION FOE NEW PUBLICATION OF NOTICE OF APPLICATION FOB 

SALE. (§166,167.) 

In the Matter of the Estate } In the Probate Court 

of > of the County of San Francisco, 

William D. M. Howard, Deceased.) State of California. 

The petition of Agnes Howard, George H. Howard and Henry F. Teschmaker, 
executrix and executors of the last will and testament of the said William D. M. 
Howard deceased, respectfully shows to this court : 

That heretofore, to wit, on the 27th day of September, 1856, your petitioner filed 
their petition in this honorable court, praying for an order authorizing and direct- 
ing them to sell certain real estate in the said last mentioned petition particularly 
mentioned and set forth, for the purpose of paying the debts of the estate and the 
legacies of the decedent's will, as by the said petition now on file in thia court will 
more fully and at large appear. 

And your petitioners further show, that upon the filing of said petition such pro- 
ceedings were had in this honorable court that an order was entered fixing the .27th 
day of October, 1856, for hearing said application and directing that notice be given 
to all persons interested in said estate to be and appear in the probate court room 



appendix; Ivii 

Socitlanui 
in the City Hall, in the city of San Francisco, at 10 o'clock, A. M., of that day, or ^^** 
as soon thereafter as counsel could be heard, and then and there show cause, if any, 
why said application should not be granted as prayed for, and that said notice 
should be given by publication twice a week, up to and including the said day set 
forth for hearing, in the San Francisco Daily Herald, a newspaper published in said 
county of San Francisco. 

Ajid your petitioners further show, that in pursuance of said order the said notice 
was inserted in the said newspaper on the said 27th day of September and published 
accord ng to the terms of said order twice a week, until the aforesaid day of hear- 
ing, but that during the said period of publication the name of said newspaper was 
cluinged from the " San Francisco Daily Herald" to the " San Fnmcisco Herald," 
in consequence of which change doubts have arisen as to the regularity of said 
publication. 

Wherefore, your petitioners pray that an order may be granted fixing a new day 
for the hearing of said application, and directing the publication of notice thereof 
pursuant to the terms of the stfitute in such oases made and provided. 

JuLiiTS K. Boss, Attorney for Petitioners. 

State of California, San Francisco County : ss. 

George H. Howard, one of the above petitioners, being duly sworn deposes and 
says, that he has read the foregoing petition and knows the contents thereof and 
that the same is true to the best of his knowledge and belief. 

Sworn to and subscrioed before me, this 6th ^ Geo. H. Howard, 

day of November, AD. 1866, > EzecutOT of the last will and testa- 

L. Wi Si,o AT, Notary Public. ) ment of Wm. D. M. Howard, dec'd 



N-O- 113. 
ORDER FOR HEARING AND PUBLICATION. (^ 166*) 

In the Matter of the last Will and Testament ) 

of \ 

William D. M. Howard, Deceased. ) 

On reading and filing the application of Agnes F. Howard, George Henry Howard 
and Henry F. Teschmacher, the executors of the last will and testament of said de- 
ceased, praying for the sale of the real estate of said deceased for the purpose of 
paying toe outstanding debts against said estate, the expenses of administration and 
the legacies as prescribed in the last will and testament.' 

It is by the court ordered, that Monday, the 8th day of December, A. D. 1856, at 
11 o'clock, A. M., of said day, be set apart for hearing said application and that said 
notice be given to all persons interested in said estate to be and appear in the Pro- 
bate Court in the City Hall, in the city of San Francisco, on that day, or as soon 
thereafter as counsel can be heard, and then and there show cause, if any they have, 
why said application should not be granted as prayed for ; and that notice of the 
same be given by publication twice a week up to and including the day set for hear- 
ing in the Daily Alta California, a newspaper published in said city and county. 

T. W. Fbeelon, County Judge. 

San Francisco, November 7th, 1856. 



N"0- 114^ 
ORDER OF SALE OF REAL ESTATE. ({ 162, 163.) 



In the Matter of the Estate ^ . In |he Probate Court, . 

of r ^^ ^^^ ^^^ ^^® County of San Francisco, 

William D. M. Howard, Deceased. ) State of California, 

This cause having come on to be heard on this 8th day of December, A. D. I8665. 
upon the petition of Agnes Howard, George H. Howard and Henry F. Teschmacher, 
executrix and executors of the last will and testament of William D. M. Howard, 
deceased, praying fqr an order authorizing and directing the sale of the real estate 
hereinafter mentioned and described, for the purpose of paying the debts of said 
estate and the legacies provided for in the wiU of said decedent ] and due proof be- 

H 



Iviii APPENDIX. 

Seetioni 

^ct. iog made of the publication of an order and notice according to law, requiring all 
persons interested in the said estate to appear in this court on the day last afore- 
said and show cause, if any, why the prayer of the said petition should not be 
granted ; and due proof being also made of the service of said order and notice on 
George H. Howai-d general guardian of William Henry Howard, infant son of the 
said decedent, the said George H. Howard being a resident of the county of San 
Francisco ; on reading and filing said petition, and no one appearing to oppose, and 
it appearing to the said court on due deliberation, necessary and expedient that the 
sale so prayed for should be made, for the reasons and purposes particularly mea- 
tioned and set forth in the said petition, it is by the said court ordered, adjudged 
and decreed, that the said executrix and executors do forthwith proceed to sell at 
public auction, to the highest bidder for cash, the following described property be- 
longing to the said estate, that is to say : 

[Here follows description of the property.] 

And it is further ordered, adjudged and decreed, that the said real estate be sold, 
in all cases, between the hours of ten «>:lock, A. M., and four o'clock, P. M. ; that 
the same may be sold in the subdivisions hereinbefore mentioned, or in such other 
subdivisions thereof as the said executrix and executors may deem expedient and 
most for the interest of the said estate ; that the said real estate be sold at the Mu- 
sical Hall, on Bush street, in the city of San Francisco, or if the said building can- 
not be obtained for the purpose of holding sales, that then the same be held at such 
other convenient and suitable place in the said city as the said executrix and execu- 
tors in their discretion may select. 

And it is further ordered, adjudged and decreed that the said executrix and exe- 
cutors before proceeding to make the sales aforesaid, give due notice of the time or 
times, place or places of holding said sales, by posting notices thereof in three of 
the most public places in the county of San Francisco, in which the said real estate 
is situated, and by publishing a notice thereof in some newspaper printed and pub- 
lished in the said county of San Francisco for three weeks successively next before 
such sales, in which notices the lands and tenements to be sold shall be described 
with common certainty. 

And it is further ordered, adjudged and decreed, that the said sales be made upon 
the following terms of payment, to wit : one half cash, and one half on a credit of 
three months, or the whole for cash, at the option of the purchaser ; the said cash 
payment to be made on the day after the day of sale, and the said credit to bear 
interest at the rate of one per cent per month, payable monthly, and if not paid at 
maturity then to bear interest until paid at the rate of three per cent, per month, 
and that such credits be secured by a note or bond of the respective purchasers at 
such sales, and a mortgage of such purchasers upon the premises by them respect- 
ively bought, and that the acts of sale and of security be in all cases at the expense 
of }>urchaser8. 

And it is further ordered, adjudged and decreed, that the said executrix and ex- 
ecutors report their acts and doings hereunder, with all convenient speed to this 
court. 

T. W. Freelox, County Judge. 

Dated San Francisco, December 8th, 1856. 



a>TO- 116, 

ORDER CONFIRMING SALE, MADE UNDER SPECIAL ACT OF LEGISLA- 
TURE. (§169,171.) 



In the Matter of the Estate ^ In the Probate Court 

of r "^ ^^^ ^^^ ^^® County of San Francisco, 

William D. M. Howard, Deceased. ) State of California. 



On reading and filing the report of Agnes Howard, Henry F. Teschemacher and 
George H. Howard, executrix and executors of the last will and testament of Wil- 
liam D. M. Howard deceased, whereby it appears that the said executrix and exe- 
cutors under and by virtue of the power and authority to them given in and by a 
certain act of Legislature of the State of California, entitled '' An Act to authorize 
the Executrix and Executors of the last Will and Testament of William D. M. How- 
ard, deceased, to sell Real Estate of the Testator at private sale," approved March 



Act. 



APPENDIX. lix 

Sections 
28th, 1867, have sold all that certain lot, piece or parcel of land situate, lying and ^J^J** 
being in the city of San Francisco, and bounded and described as follows : 

[Here follows description of the property.] 

And it appearing to the court that said sales were made in all respects in conform- 
ity with the terms and provisions of the said act, and that the prices for which the 
said lots were respectively sold are reasonable and not disproportionate to their 
value ; it is, on motion of Julius K. Rose, of counsel for said executrix md executors, 
ordered, adjudged and decreed, that the said sales and each and every of them be 
be confirmed. 

T. W. Freelon, County Judge. 



ITO. 116. 
ORDER OF SALE OF REAL ESTATE. (162, 163.) 
In the Matter of the Estate^ p^^^^^^ ^^^^ 

Archibald A. Ritchie, Dec.) ^""^ *^« ^^^^5' ^^ ^"^ Francisco. 



This cause coming on to be heard this day upop the sworn petition of the admin- 
istrator and administratrix of said decedent, and ther allegations therein contained, 
(the infant and minor heirs being duly represented by Harvey S. Brown, Esq., guar- 
dian, ad litemj) praying for an order of this court authorizing them, the said admin- 
istrator and administratrix, by reason of the insufficiency of the personal estate to 
pay ofi*, satisfy and discharge the allowance to the family, the debts outstanding 
against the said estate and the charges and expenses of administration, to sell the 
real estate described in said petition for the payment and satisfaction of the liabili- 
ties above mentioned, and it appearing to the satisfaction of the court, that due 
publication of such application has been made in the San Francisco Herald, a news- 
paper, published daily in the city and county of San Francisco, and that the prayer 
of the said petition is right and proper, and should be granted. 

It is therefore adjudged, ordered and decreed, and this court doth hereby adjudge, 
order and decree, that the said administrator Robert H. Waterman and the said ad- 
ministratrix, Martha H. Ritchie, be, and the same are hereby authorized to sell for 
the purposes set out in the said petition, viz : the payment and discharge of the 
debts and liabilities above mentioned, the real estate herein mentioned and described 
below, or so much thereof as will be sufficient to pay off and satisfy the debts and 
liabilities aforesaid, it being the same real estate mentioned and described in said 
petition, viz : 

[Here follows description of property, etc.] 

And it is hereby further ordered, that in making said sale of the above men- 
tioned real estate, the administrator and administratrix shall sell in such order as to 
them sEall seem most proper and beneficial to the interests of the said estate of 
their said decedent, and shall strictly pursue the directions of the statutes in such 
cases made and provided. 

And it is further ordered, that the administrator and administratrix shall sell the 
said real estate upon the following terms, viz : ten per cent of the purchase money 
shall be paid in cash by the purchaser or purchasers on the day of sale : one Judf 
of the remainder shall be paid upon the confirmation of the sale by this court, and 
the then remaining half shall be paid at the end of six months, from and after the 
said day of sale. For the deferred or credit payment in each and every case, the 
administrator and administratrix shall take the note of the purchaser or purcha- 
sers, with a mortgage upon the property in each and every case bought by the re- 
spective purchaser to secure the payment of the note. 

And it is further ordered, that at the next term of the court, after making such 
sale or sales, the administrator and administratrix shall return to this court a full 
and accurate report of their proceedings in the premises. 

T. W. Freelon, County Judge. 

[The bond to be given on the sale of real estate, § 73, is easily drawn from Form 
No. 38, ante.] 



Seetfont 

IVobate 
Aet. 



APPE NDIX. 



3SrO- 117. 



ORDEE FOR APPOINTMENT OF GUARDIAN FOR MINOR HEIRS, ON APPLI- 
CATION FOR SALE. ($159.) 

State of California, ) In the Probate Court, 

County of Saa Francisco. J within and for the county aforesaid. 

In the matter of the last will and testament of Joseph L. Folsom, deceased. 

Upon the presentation of the petition of the executors of the last will and testa- 
ment of Joseph L. Folsom, deceased, praying for an order to sell the whole or so 
much and such parts of the real estate of the testator mentioned and described in 
their petition as the probate judge shall deem necessary for the payment of the 
legacies to the mother and sister of the testator, the debts outstanding against the 
estate and the expenses of administration, it being made to appear to the court that 
the following devisees and heirs of the testator, viz : Almeda Forrest, Martha Jose- 
phine Forrest, George Frank Decatur Forrest, and Gustavus Decatur Folsom, are 
minors, under twenty-one years of age, having (none of them,) a general guardian, 
in this country or elsewhere, In this state ; it is ordered that, Gwyn Page, of the 
county of San Francisco, be and is hereby appointed the guardian of the said 
infant devisees and heirs, for the sole purpose of appearing for them and taking 
care of their interests in the proceedings on the said petition, the guardian hereto- 
fore appointed by the court being now absent from the state ; and it is further 
ordered, that the appointment of Edward Stanley, the former guardian to the same 
is hereby revoked from this date. 

Witness my hand, this Ist September, 1866. 

T. W. FxBBLOv, County Judge. 



3>TO- lis. 
ORDER OF CONFIRMATION OF SALE. (4 171, 173.) 

State of Calipornia, ) In Probate Court. 

County of San E^uncisco. ) February 9th, 1867. 

In the Matter of the Estate 

of 
Joseph L. Folsom, Deceased. 

Whereas, by an order of the probate court, made on the 29th day of December, A* 
D. 1866, Henry W. Halleck, Archibald C. Peachy and P. Warren VanWinkle, the 
duly appointed and qualified executors of the last will and testament of Joseph L. 
Folsom deceased, were authorized and directed to sell at public auction, certaio real 
estate and property belonging to the estate of Joseph L. Folsom, situated in the 
county of San Francisco, in said State, and particularly set forth and described in 
the said order ; 

And whereas, under and by virtue of the said order of sale, and pursuant to the 
terms thereof, the said executors, after due and legal notice given, exposed for sale 
and sold at public auction on the twenty-eighth day of January, A. D. 1857, in the 
city of San Francisco, to the highest bidder, the real estate situated in the county 
of San Francisco and described and set forth in said order of sale *, 

And whereas, at the next term of the court after such sales the said executors 
duly made to this, the said probate court, returns verified by their oath, of their pro- 
ceedings with account of the sales under the said order of sale, setting forth therein 
the particular pieces and subdivisions of land sold, the persons to whom they were 
sold, the amount for which they were sold, the payments made on account of the 
purchases, and all other matters relating to the said sales, under the said order, 
which said return was made and filed on the second day of February, A. D. 1867 ; 

And whereas, on the said second day of February, A. D. 1867, anorder was made 
by this court that all persons interested in the estate of Joseph L. Folsom deceased, 
and all persons having objections to the confirmations of the sales so reported, or 
any of them, either for that the proceedings were unfair, or that the sum bid is dis- 
proportionate to the value of the lot sold, and that a sum exceeding such bid, at least 
ten per cent, exclusive of the expense of a new sale, may be obtained, or for any 
other reason, show cause on Monday, the 9th day of February, 1867, at the court 



APFETNDIX. Ixi 

Sections 
room of this court, or so soon thereafter as they could be heard, why an ordier should ^1^*® 
not be entered confirming said sales and directing conveyances to be eleciited, 
which said order to show cause was published, as appears by affidavit on file, in the 
8an Francisco Herald, a daily newspaper of the city of Ban Francisco, for sevien days, 
being from the third day of February to the ninth, both days inclusive ; 

And whereas, on this day it has been made to appear by proof to the satisfaction 
of the court, that the notice required by law was given of the said sales, and further 
made to appear to the court that the sale was in all respects legally made and fairly 
conducted, that the sum of thirteen thousand and two hundred dollars ($13,200) bid 
upon the piece or subdivision as hereinafter set forth was not disproportionate to 
the value of the property sold, and that upon said piece or subdivision sold the pur- 
chasers have made the one half payment as required by said order of sale; 

Now it is hereby ordered, that the said sale by the said executors of the following 
piece Or subdivision of land, together with the improvements thereon, as follows : 

[Here follows description of the property.] 

Be and the s^me Is hereby confirmed and made valid to the purchasers, John Wie- 
land and August Koelscher ; 

And it is further ordered, that the executors make, execute and deliver to the said 
purchasers of the said piece or subdivision of land hereinbefore set forth ^ with the 
names of the purchasers and the amount bid, a good and valid deed, conveying the 
right, title, interest and estate which the said Joseph L. Folsom had therein at the 
time of his death, and all right, title and interest which the said executors may have 
acquired therein for the estate of said Folsom since his decease, but the delivery of 
said deed is to be upon the receipt, at the same time, of a mortgage upon the same 
piece or subdivision of land from the said purchasers, if they have not paid the full 
amount of their bid, and elect to give a mortgage for one half the purchase money, 
in the manner set forth in the order of sale, the said deed and mortgage to be made 
by the attorney of the executors at' the expense of th^ purchasers, according to the 
announcement in the terms of sale. 

In witness hereof I, Thomas W. Freelon, County Judge and ex-officio Probate Judge 
in and for the county of San IPrancisco, have in open court on this ninth day 
[SBAL.] of February, A. D. 1857, hereunto set my hand and caused the seal of the 
Probate Court of the said county of San Francisco to be affixed. 

Thomas W. Fbbelok, 
County Judge and ex-offieio Judge of the Probate Court. 
Attest : ^Thomas Hates, Clerk. 

By DlcNis Lyons, Deputy Clerk. 



DEED OF EXECUTOR OR ADMINISTRAt6r. (§172.) 

This Indenture, made the day of June, Anno Domini , oighteen hundred and 

fifty eight, at the city and county of San Francisco, state Of California, by and between 
A. B. and C. D., the duly appointed and qualified executors [or administrators] of 
0. H., deceased, late of said city and county of San Francisco, parties of the first 
part, and E. F., of the city and county of San Fjancisco and same state, party of 
the second part, witnesseth, that whereas, on the day of March, A. D., 1868, 

the probate court within and for the city and county of San Francisco, made an 
order of that date, authorizing and directing the said parties of the first part to sell 
certain real estate of the said G. H., deceased, i^tuated in the said city and county, 
and particularly set forth and described in said ordor of sale, either as the same 
was therein described, or in such subdivisions and parcels as, in their judgment, 
would secure the largest price ; a certified copy of which order of sale Is on record 
in the office of the County Recorder of the city and county of San Francisco, in book 
of page and following, and is hereby referred to und made partof this 
indenture : 

And whereas, under and by virtue of said order of sale, and 'pursuant to legal 
notices given thereof, the said parties of the first part, on the day of May, A. 
D., 1858, at theauction rooms of S. L. Jones & Co., in said city and county, bO- 
tween the hours of 10 o'clock, A. M., and the setting of the sun on that day, ofibred 
for sale to the highest bidder, the real estate situated in the said city and county, 
and described in said order of sale, and at such sale the said party of the second 



Ixii APPENDIX. 

Seetiona 

^ct!* P*'^ became the purchaser, for the sum of one thousand dollars, being the highest 
bid offered therefor, of the parcel or subdivision of land hereinafter particiSarly 
described : 

And whereas, the said probate court, upon the return of said sale, made at the 
next term thereof by the said parties of the first part, did on the 17th day of May, 
A. D., 1858, make an order confirming said sale and directing conveyances to be 
made therefor, and directing a conveyance to be executed therefor ; a certified copy 
of which order, confirming said sales and directing such conveyances is recorded in 
the office of the County Recorder of the said city and county, in book " of 
deeds," page and following, and is hereby referred to and made part hereof: 

Now, therefore, the said A. B. and G. D., executors [or administrators] as afore- 
said, parties of the first part, pursuant to the order of the said probate court, for 
and in consideration of the sum of five hundred dollars, to them in hand paid, and 
five hundred dollars secured to be paid by the said £. F., party of the second part, 
the receipt whereof is hereby acknowledged, have granted, bargained, sold and 
conveyed, and by these presents do grant, bargain, sell and convey unto the said 
party of the second part, his heirs and assigns forever, all the right, title, interest 
and estate of the said G. H, at the time of his death, and also all right, title and 
interest acquired by the said parties of the first part for the estate of said E. F., 
since his decease, in and to that certain piece or parcel of land situated in said city 
and county of San Francisco, described as follows, (reference being had to the 
official map of said city and county, on file in the office of the Recorder aforesaid) 
to wit : [Description,] together with the tenements, hereditaments and appurtenances 
whatsover to the same belonging or appertaining. To have and to hold, all ands in- 
gular the above mentioned and described premises, together with the appurtenances 
unto the said party of the second part, his heirs and assigns, to his sole use, benefit 
and behoof forever. 

In witness whereof, the parties of the first part, executors [or administrators,] as 
aforesaid, have hereunto set their hands and seals, the day and year first above 
written. 

Signed, sealed and delivered in presence of ) 

A. B., [8EAL ] 

Executor [or administrator] of the estate of G. H., deceased. 

C. D., [seal.] 
Executor [or administrator] of the estate of G. H., deceased. 

State of California, City and County of San Francisco, ss. 

Be it known, that on this day of June, A. D., 1858, personally appeared be- 

fore me, a Notary Public, within and for the county aforesaid, A. B., and C. D., per- 
sonally known to me to be the persons described in and who executed the foregoing 
deed, as executors [or administrators] of the estate of G. H., deceased, and seve- 
rally acknowledged to me that they, as executors [or administrators] of the estate of 
G. H., deceased, executed the same freely and voluntarily, for the uses and purposes 
therein mentioned. 

In testimony whereof, I have hereunto set my hand and affixed my seal of office, 
the day and year above written. 

J. K., Notary Public. 



ITO- ISO. 
BOND OF INDEMNITY TO ADMINISTRATORS. (§ 183, 184.) 

Enow all men by these presents, that we, Obadiah B. Dickinson, as principal, and 
Beivjamin Brewster and John C. Horan, as sureties, are held and firmly bound unto 
David S. Turner, administrator of the estate of John Smith, deceased, for the benefit 
and indemnity of said administrator, and the benefit and indemnity of the persons 
entitled to the interest of said deceased in the lands contracted for as hereinafter 
mentioned, in the sum of ten thousand dollars, for the payment of which sum to 
the said D. S. Turner, administrator, and the said persons so entitled as aforesaid, 
or to each, or any of them, and to their or any of their executors, administrators 
and assigns, we bind ourselves, our heirs, executors, administrators and assigns, 
jointly and severally, and firmly, by these presents, sealed with our seals, and dated 
this, &.C. 

The condition of the above obligation is such, that whereas, under, and by vir- 
tue of an order of the probate court in and for the city and county of San Francis- 



APPENDIX. Ixiii 

Sections 

CO, duly made and entered on the first day of, etc., a sale made by said administra- ^^^^ 
tor of the interest of said deceased, in and to certain lands, lying and being in the 
county of, &.c., known as the rancho " Quien Sahe" said interest being a certain 
contract heretofore to wit, on etc., made by the said deceased in his life-time, on the 
one part, with one Francisco Lugo, the then owner of said lands on the other part, 
for the purchase by said John Smith of the said rancho, for the sum of six thou- 
sand dollars, and upon which, said purchase, in accordance with the terms of said 
contract, said John Smith has paid the sum of one thousand dollars and the sum of 
five thousand dollars in several payments is to become due ; and whereas, upon the 
said sale, the said 0. B. Dickinson became the purchaser of said contract, and 
bought the interest of said deceased therein, for the sum of one thousand dollars, 
and the said sale has been duly reported to the said court according to law, an ap- 
plication is about to be made to the said court to approve and confirm the same, and 
an assignment of the said contract to the said 0. B. Dickinson, of even date here- 
with, has been executed, to be delivered upon the execution and delivery of these 
presents, and upon such confirmation being made as aforesaid. 

Now, therefore, if the said purchaser, the said 0. B. Dickinson, shall well and 
truly pay, satisfy and discharge all the payments to become due upon the said con- 
tract, after the date of such sale, and shall fully indemnify, save and hold harmless, 
the said D. S. Turner, administrator, and the person or persons so entitled as above 
set forth, and such of them, against all demands, costs, charges and expenses by 
reason of any covenant or agreement contained in such contract, then this obligation 
to be void, else to remain of full force and virtue. 

0. B. DicKiiTBON, [seal.] 
Benj. Bbbwsteb, [seal ] 

J. C. HOBAN, [seal.] 

Sealed and delivered in presence of 
Pebrt G. Child s. 



3^a■o. ISl. 

PETITION THAT PARTNER OF DECEASED RENDER AN ACCOUNT. (^198.) 

In the Matter of the Estate 
of 
B. C, Deceased. 

To the Hon. the Probate Judge of the City and County of San Francisco : 

The petition of F G., administrator, respectfully showeth, that the inventory of 
the property of said deceased was duly returned and filed herein, showing a part- 
nership interest of said deceased in the late firm of Jones &. Co., which firm con- 
sisted of said deceased, and one William A. Jones, and which said interest is ap- 
praised at the sum and value of ten thousand dollars. 

That more than six months have elapsed since said inventory was filed, and that 
said William A. Jones, the surviving partner of said deceased, has not rendered any 
account to your petitioner as such administrator, and refuses to give any informa- 
tion as to the condition of the atfairs of said partnership ; that debts to a large 
amount have been presented against said estate, and it becomes necessary to ascer- 
tain the amount of said partnership inte.est, in order to determine the necessity of 
selling real estate to pay said debts and the expenses of administration. 

Wherefore, j'our petitioner prays, that said William A. Jones be ordered to ren- 
der an account ot the said partnership, showing a full statement of its afiairs at the 
time of the death of said deceased, and the condition thereof from that time until 
the day of rendering said account. 

F. G., Administrator. 

Dated, etc. 

[Sworn to as in form No. 35.] 



ORDER FOR CITATION ON THE FOREGOING. (§ 198.) 
[Title of estate and court.] 
On reading and filing the petition of F G. the administrator herein, praying for au 



Ixiv APP;ENI>IXi 

^'^^ order to compel W. A. Joneg, as sunriying partner of deceased, to render an account 
of the partnership affairs : 

It is hereby ordered that a citation issue requiring the said W. A. Jones to render 
an account of the partnership affairs of the late house of W. A. Jones 6l Co., and file 
the same in this court within ten days A*om this date, to wit : on or before the 
day of > 1858, or that he show cause on that day, at 11 o'clock, A. M., 

before the judge of this court, at the court room thereof, at the City flail, in the 
city and county of San Francisco, why such account should not be rendered. 

[Dated, etc.] 

M. N., Probate Judge. 

ORDER TO SHOW CAUSE AGAINST ATTACHMENT. (§ 198.) 

[Title of estate and court.] 

An order having been made herein on the application of the administrator that 
William A. Jones, the surviving partner of deceased, be cited to render an account 
or show cause on this day, why an account of the partnership afikirs should not be 
rendered ; And now, on this day of May, 1858. the said matter coming on to 

be heard, and due proof being made to the satisfaction of this court, that said cita^ 
tion was issued and, with a certified copy of the petition and order upon which the 
same was founded, was served personally upon the said William A. Jones, and re- 
turned to this court and filed herein at least five days before the return day thereof, 
and the said William A. Jones failing to appear and show causo why said account 
should not be rendered and filed, and it appearing by the affidavit of said adminis- 
trator and from the records and files of this court, that no such account has been 
rendered or filed ; 

On motion of said administrator it is ordered that said William A. Jones shows 
cause before me, at the court room of this court, at, etc., on, etc., why an attach- 
ment should not issue against the said William A. Jones, to com[)el him to render 
an account, to wit : the account heretofore ordered by this court. 

[Dated, etc.] 

M. N., Probate Judge. 

3>TO. 184:. 

ORDER THAT PARTNERS OF DECEASED HAVE POSSESSION OF PARTNER- 
SHIP EFFECTS. (§ 198.) 

State of CaTifomia, City and County of San Francisco, ss. 

In the Matter of the last Will and Testament i In Probate Court, March 19th, 1867. 

of > January Term, 1867. Present: Hon. 

Adolph Groufeir, Junior, Deceased. ) Thos. W. Freelon, County Judge. 

On the petition and application of Abel Guy, executor of the last will and testa- 
ment of said deceased, praying that an order of said court may be made to author- 
ize him, the said executor, to remit the sum of thirty thousand dollars to Albert de 
Ruymirol and Auguste de Naurais, the surviving partners of said Adolph Gronfeir, 
Junior, deceased, said sum being a portion of the partnership assets of said firm. 

The application aforesaid having been referred to Denis Lyons, on the 16th day 
of March, A. D , 1867, by an order of this court of that date to inquire into and re- 
port to this court whether consistently with the afikirs and condition of said estate, 
said executor, Abel Guy, may remit to the said co-partners aforementioned, being 
now beyond the jurisdiction of this court, an amount of money now in his posses- 
sion, a portion of the assets of said estate, and the joint property of said partners, 
and the said Lyons having filed his report herein, from which it appears that there 
may be safely handed over to said surviving partners the sum of $30,000 in cash, in 
said executors hands, an I it being proved to the satisfaction of the court, on the 
application heretofore made, that said company partnership was formed and entered 
into as alleged in the petition of the petitioner, then filed, and as such co-partners,, 
under the provisions of the articles of copartnership were entitled to the liquidation 
of its affairs. 

It is therefore ordered, that sa^d executor, Abel Guy, do hand over and pay to 



APPENDIX, IXV 

Sectiona 

Auguste de Naurais and Albert de Ruymirol, the sum of $30,000, and his proper ^'^^^ 
charges in the premises, and to demand proper and usual evidence and vouchers for 
said payment. 

T. W. Fbbblow, County Judge. 
March 19tli, 1857. 



PETITION TO COMPROMISE A DEBT. (§ 201.) 

To the Hon. Thomas W. Freelcm, County Judge, and ex^Jfido Probate Judge in and 
for the city and county of San Francisco : 

The petition of A. B., executor of the last will and testament of C. D., late of San 
Francisco, deceased, respectfully showeth unto your Honor, 

That among the property of the estate of said deceased, which came to the know- 
ledge and possession of your petitioner as such executor, was a note against E. F., 
dated, etc., for the sum of $900 with interest at the rate of two per cent am per 
month, that to secure the payment of said note and interest the said E. F. executed 
to said 0. D. a mortgage bearing even date with said note on the following described 
lot of land, viz : 

[Here follows description of property.] 

That the whole amount now due on said note so secured, or pretended to be se- 
cured, is, to the 20th day of the present month of February, 1868, prmcipal and in- 
terest, one thousand one hundred and seventy dollars ; 

That the said E. F. alleges that he i&l wholly unable to pay said amount, but is 
willing to convey the lot of land so mortgaged to petitioner for the benefit of the 
estate of said testator ; that said lot is of but little value, and that were proceedings 
instituted in a court of law to foreclose said mortgage scarcely anything would be 
left after paying expenses of foreclosure, sale, etc. 

Wherefore, your petitioner prays that he may be authorized to compromise said 
note, by taking a conveyance of the land mortgaged to secure the payment of the 
same, he being informed that no judgments exist against said E. F., or other incum- 
brances (except said mortgage) which would affect the title proposed • to be 
given, and that thereby the most could be realized for said estate. 

And your petitioner will ever pray, etc. 

A. B., Executor, etc. 

San Francisco, February 26th, 1858. 



3sro. i»e. 

ORDER AUTHORISING EXECUTOR TO COMPROMISE CLAIM. ({ 201) 
In the Matter of the last Will and Testament J -. -^^^y^^j^ Court 

C. D., deceaijed ) City .Ud County of San Frandaco. 

On hearing the petition of A. B., executor of the last will and testament of C. D., 
deceased, praying for an order of this court authorizing him to compromise a certain 
note due said estate made by E F. for the sum of nine hundred dollars, with inter* 
est thereon due, afler a full examination of the petition and the facts and circum- 
stances connected therewith. 

It is by the court ordered, that the petitioner, executor as aforesaid, be and he is 
hereby authorized to take from the said E. F. in full discharge of said note of $900 
and the interest due thereon, a conveyance of the lot of land described in his peti- 
tion by said £. F., mortgaged to secure the payment of said note and interest, and 
relraise and discfaai^e said mortgage* 

San Francisco, March Ist, 1858. 

T. W. Fbbbloit, County Judge, 



Ixvi APPENDIX. 

Seettont 
Probate 
Act. 3>TO^ 1S7- 

PETITION TO COMPROMISE DEBT. (§ 201.) 

To the Honorable T. W. Freelon, Judge of the County of San Franciaco and 0X officio 
Probate Judge. 

The undersigned, H W. Halleck and P. Warren Van Winkle, executors of the 
estate of Joseph L. Folsom, deceased, by their attorney, Frederick Billings, Esq., 
respectfully represent, that at a sale of your petitioners of a part of the real estate 
of said estate, on the 11th of January, 1856, under the order of this court, dated 
Pecember 17th, 1856. A. B became the purchaser of a lot, commencing, etc., for 
the sum of (7,850, upon which sum he has only paid $500. That said sale was 
reported to this court, on the 2lBt of January, 1856, and confirmed by order of this 
court on the 6th of February, 1856. 

That the said A. B. is insolvent, and unable to pay any more of said sum ; that 
he is willing to restore the said lot to the petitioners and lose the payment made, 
and the petiiioners are willing to accept the property and said sum, and release him 
from all responsibility for the balance. 

That no deed has been made to him for said lot, and the title is still in your peti- 
tioners as executors. 

Your petitioners therefore pray, that the orders of confirmation as respects the 
said A. B., be set aside, and the executors be at liberty to sell the said lot again at 
public sale, to the highest bidder, on such terms as they may deem most beneficial 
to the estate. 

Fred. Billihob, 
Attorney for Executors. 

June 16, 1857. 



ORDER FOR SAME. (§ 201.) 



[ 



In the Matter of the application of the Execu- 
tors of Folsom, to set aside the order confirm- 
ing a sale of real estate to A. B. 

Upon reading and filing the petition of H. W. Halleck, A. C. Peachy, and P.War- 
ren Van Winkle, executors of Joseph L. Folsom, deceased, and on moticm of Fred- 
erick Billings, Esq., attorney for said executors, and it appearing to the satisfaction 
of the court that the facts set forth in said petition are true, and upon the appear- 
ance of D. 0. Shattuck, Esq., counsel for the said A. B., and admitting the facts as 
set forth in said petition and assenting to the prayer thereof, 

It is hereby ordered, adjudged and decreed, that the sale of the said lot to wit: 
to the said A. B., on the 11th of January, 1856, and the confirmation of said sale by 
order of this court, on the 5th day of February, 1856, be and the same are hereby 
set aside and annulled, no conveyance of said lot having been made to him by said 
executors, and it appearing to the court that the said A. B. is insolvent, and unable 
to pay to the said executors the balance of said sum due on said lot ; it is further 
ordered, that the said $500 received by the said executors as part payment on 
said sum and the said lot be accepted by the executors as a compromise lor any 
balance due on said sale from him, and that the said executors be authorized, and 
they are hereby authorized to sell said lot at public sale to the highest bidder on 
such terms as they may deem most beneficial to the interests of the estate. 

T. W. Fkbblon, County Judge. 
June 16th, 1857. 



189. 

APPLICATION OF CREDITORS FOR EXECUTOR TO BRING ACTION TO RE- 
COVER PROPERTY FRAUDULENTLY CONVEYED BY DECEASED. (^ 203, 
202.) 

[Title of Estate and Court.] 

To the Hon. the Probate Judge, etc. 

The application of A. B., C. D., E. F. and 0. H , respectfully showeth, that they 
are creditors of said deceased to the aggregate amount of |8,000, and their several 



APPENDIX, Ixvii 

8»etioiu 

claims are on file, duly allowed and approved. That as appears by the inventory ^^** 
on file herein, and the showing made by the executor of deceased by his account 
rendered to this court on (date,) there is a deficiency of assets in the hands of said 
executor sufficient to pay the claims of your petitioners ; that said deceased, in his 
lifetime, was possessed of certain real estate, described as follows : (description,) 
and also certam goods, chattels, rights and credits, a schedule of which is hereto 
annexed, which he conveyed to one M. N.. on (date,) and which conveyance these 
petitioners are informed and believe, and therefore they so allege and charge, was 
made fraudulently and with intent to defraud his creditors, and which said estate 
and property, if now in the possession of said executor, as assets of this estate 
would be more than sufficient to pay the said claims of your petitioners. 

That your petitioners have made application to said executor, to prosecute an 
action for the recovery of said property on behalf of said estate which he has 
wholly neglected and refused to do. 

Wherefore, your petitioners pray that a citation may be issued, requiring said 
executor to show cause why he should not proceed to recover said property by suit 
at law or in equity, on payment of such part of the expenses of such proceeding, 
or upon giving such security therefor to the said executor, as this Hon. Court may 
direct. 

[SIOITBD BT PBTITIOBBBS.] 

[Sworn to as in No. 85.] 



TTO. 130- 

OBDEB FOB SAME. ($208, 202.) 

[Title of estate and court.] 

A. B., C. D., E. F. and G. H. having made due application to this court by their 
petition filed therein on (date) and the executor of this estate having been duly ci- 
ted to show cause, and the matter now coming on to be heard, and the said petition- 
ers appearing by Mr. Bowman, their counsel, and said executor in person, and a full 
showing having been made, and it appearing to this court that there is sufficient 
ground of fraud in the said conveyance of said property to justify the institution of 
an action for the recovery of the same, It is hereby ordered that said executor pro- 
ceed forthwith and without unnecessary delay to commence and that he prosecute 
to final judgment a proper action for the recovery of said property, upon the pay- 
ment by said petitioners to him of the sum of $500, as a deposit for the costs and 
expenses of such proceeding, and a sufficient bond ot indemnity to be approved by 
this court in the sum of $1,000, as security for any further costs and expenses which 
may therein and thereby be incurred by said executor. 

M. N., Probate Judge. 



3>TO- 131- 
PETITION FOB CONVBFANCB OF BEAL ESTATE. (§ 206 ) 
[Title of estate and court.] 

To the Hon. the Probate Judge, etc. 

The petition of, etc., showeth, that on the day of , 1856, a contract in 

writing was made and entered into between A. B., then resident of the city of San * 2^« 
Francisco and your petitioner, wherein and whereby it was agreed that whereas 
said A. B. was the owner of a certain lot of land lying and being in said city of San 
Francisco, to wit: (Description.) Your petitioner should erect, or cause to be 
erected, upon said lot certain brick buildings, and that in con.iideration thereof , after 
the construction and ftill completion of said buildings, said A. B should convey to 
your petitioner the eastern half of said lot, all of which appears more fully by refer- 
ence to said contract, which is annexed hereto and made part of this petition ; 

That thereupon your petitioner proceeded to erect and construct said buildings 
upon said lot and performed his part of said contract within the time and according 
to the terms therein set forth. 

That shortly after buildings were completed said A. B. died, without making any 
such conveyance to your petitioner as required by said contract, and that letters of 



Ixviii APPENDIX. 

Stetlonf 

^'a^.^* adminiBtration upon his estate were issued by ttiis honorable court to M. N., who is 
now the administrator of the estate of said A. B. ; 

Wherefore your petitioner prays that a decree may be made directmg the said M. 
N., administrator, to make and execute to this petitioner a conveyance of said east- 
em half of said lot) after a due hearing for that purpose be had before this court at 
a tin.e to be appointed by this court, and ol which notice be given by publicaticm 
according to law to all persons interested to appear and show cause therein. 
[Sworn to as in No. 86.] 

CD., Petitiouer. 

DECEEE ON THE ABOVE, (§208.) 

In the Matter of, etc. In Probate Court, etc. 

Application having been made herein by C. D., by petition duly verified and filed, 
. nfvp showing, etc., [recite substance] and the hearing of said matter having been appoint- 
I ^^' ed for this day at 11 o'clock, A. M., the same being a regular term of court, and 
due notice thereof having been given in accordance with the order of this court, by 
publishing the same in the, etc., for four successive weeks, to wit: from 
^ to , as is proved by the affidavit of W. Y., duly filed herein, and the same 

9 ^*' coming on to be hoard, counsel appearing in behalf of petitioner and of said adminis- 
trator, and no other person interested in said estate appearing, and said matter be- 
ing fully examined, argued and considered, and thereupon, after due deliberation, 
it appearing to this court that said contract is legal, equitable and just, and that the 
same has been fully performed on the part of said C. D., and that said 0. D. is fully 
and clearly entitled to a conveyance of one half of said lot according to the terms 
of said petition ; 
} 206. It is hereby ordered, adjudged and decreed, that said M. N., administrator of the 
§ 208. estate of A. B. deceased, do make, execute and deliver to said C. D., petitioner, a 
conveyance of bargain and sale of one half of said lot of land^ the description of 
which said lot of land to be so conveyed is as follows : 

[Here follows description of Jbhe property.] 

And that thereupon said administratior and said petitioner execute mutual acquit- 
tances and discharges of all rights, claims and demands under and by virtue of said 
contract, and that the same be thereupon cancelled. It is further ordered that the 
expenses of this proceediug be divided equally between said estate of A. B., de- 
ceased, and said petitioner, and that a certified copy of this decree be recorded in 
the office of the Recorder, eta 

B. S.y Probate Judge. 
[Dated, etc.] 

XTO- 183- 

ORDER OF PUBLICATION ON APPLICATION FOB CONVEYANCE. ($ 206.) 

State of California, City and County of San Francisco. 

In the Matter of the Estate 1 

of > In Probate Court. 

James Caleb Smith, Dec'd. ) 

Austin E. Smith, executor of the last will and testament of James Caleb Smitht 
deceased, having filed his petition, which is on file in this court, setting forth in sub- 
stance that a deed absolute was made and executed by one William McDaniel, of 
certain real estate, set forth and described in his said petition to the said deceased 
and one Geo. T. Marye, and alleging in his said petition that the said ccmveyance 
was intended as a mortgage only, and praying that he, the said executor, be allowed 
by the said court to make re-conveyance of the said property to the said McDaniel, 
upon the payment to and receipt by the said executor of the amount due by the 
said McDaniel to the said estate. Now, therefore, it is by the court ordered, that 
all persons interested, show cause, on Monday, May 8d, 1868, at the hour of 11 
o'clock, A. M , at the court room of said court, in the city of San Francisco, why 
the prayer of the petitioner be not granted, and he be by order of this court allowed 




APPENDIX. Ixix 

Seotiom 

to make re-comreyaDce of said property, and notice of this order be publbhed in ^^^ 
the " San Franciaco Herald," a newspaper, published in the city and county of San 
f rancisoo, twice a week, lor four Buccessive weeks, 

T. W. Frxelon, County Judge. 
March 29th, 1858. 



NOTICE OP HEARINa AND PROOF OF PUBLICATION. (206, 207.) 

PROBATE COURT, city and county of San Francisco, State of Cal1fornia.--In 
the matter of the estate of J. Caleb Smith, deceased — Pursuant to an order of this 
court, made this day, notice is hereby given, that Monday, the third day of May, 
A. D., 1868, at eleven o'clock, A. M., of said day, at the court room of this court, 
at the city haU, in the city and county of San Francisco, has been appointed for 
hearing the application of Austin £. Smith, executor of said estate, praying for an 
order that he make conveyance of a certain tract of land, lying and being in the 
eonnty of Solano, state of California, to William McDaniel, upon the payment, by 
said William McDaniel, of the amount of money due by him to said estate, and 
which land is claimed to be held by said Estate as a security for the payment of said 
money, at which time and place all persons interested therein may appear and con- 
test the same. 

San Francisco, March 29, 1858. 

William Dubb, Clerk. 

State of California, City and County of San Francisco, as, 

Robert White, of the city of San Francisco, being duly sworn, deposes and saysi 
that he is the book-keeper, in the office of the printer and publisher of the San 
Francisco Herald, a daily and weekly newspaper, published daily in the city of San 
Francisco, in the county aforesaid, that a notice, of which the annexed is a printed 
copy, has been regularly published in the said paper at least twice a week for /our 
weeks, commencing on the third day of April, 1858, and ending on the third day of 
May, 1868. 

RoBEST White. 

Subscribed and sworn before me, this 3d day of May, 1858. 
Wm. L. Hiooins, Notary Public. 



N"0- 136. 
ORDER TO MAKE CONVEYANCE. (§ 208.) 



In the Matter of the Estate 1 

of > In Probate Court. 

J. Caleb Smith, Deceased. ) 

State of California, City and County of San Francisco. 

Whereas* on the 29th day of March, A. D., 1858, Austm E. Smith, as executor of 
the estate of J. Caleb Smith, deceased, filed his petition in this court, setting forth 
among other things, that one William McDaniel had, by his deed absolute, conveyed 
and transferred to the said J. Caleb Smith, in his life-time, and to one George T. 
Maryo, certain property, to wit : all that certain piece or parcel of land, lying and 
being in the county of Solano, state of California, and commencing at a point, etc. ; 
which said conveyance was so made as security for certain moneys loaned and ad- 
vanced by the said J. Caleb Smith, and. George T. Mary^ to the said McDaniel; and 
whereas,, the said Austin E. Smith, did also in his said petition set forth, that the 
said William McDaniel was ready to pay over to him, the said Austin E. Smith, as 
executor as aforesaid, the amount of money loaned to the said William McDaniel 
by the said J. Caleb Smith, upon the execution of a re-conveyance by the said Aus- 
tin E. Smith, as executor, of the aforesaid real estate or property ; and whereas, it 
appearing to this court that due public notice was givea, as required by an order of 
this court, in the " San Francisco Herald," a newspaper published in the city and 
county of San Francisco, of the application so made by the said Austin £. Smith, in 
his said petition to make re-conveyance to the said William McDaniel of the afore- 



^ 



IXX APPENDIX. 

fleetlona 

^"^^ said property, upon the payment by the said McDaniel to the said Austin E. Smith, 
as executor, as aforesaid, of the money so loaned by the said J. Caleb Smitii to the 
said McDaniel ; and whereas, by an order of this court, made and entered on the 
third day of May, A. D., 1868, a reference was made to D. P. Belknap, to inquire 
into, ascertain and report to this court the amount of money so due the estate of J. 
Caleb Smith, deceased ; and whereas, on the 10th day of May, 1858, the said Bel- 
knap having taken the necessary prooft of the matter so referred to him, did report 
to this court, that there is due to the estate of J. Caleb Smith, deceased, by the said 
William McDaniel, the sum of three thousand seven hundred and twenty-two dol- 
lars and fifty cents, ($8,722 60) which report is on file in this court ; and whereas, 
on motion made in open court in behalf of said executor, on the 10th day of May. 
1868, the report of said referee was duly confirmed ; and it appearing to the court, 
that a re-conveyance of the said property should be made as prayed for by said 
executor. Now, therefore, it is by the court ordered, adjudged and decreed, that 
Austin £. Smith, as executor of J. Caleb Smith, deceased, by deed of release and 
quit claim, duly executed and acknowledged by him as such executor, re-convey to 
the said William McDaniel, all the right, title and interest held and enjoyed by the 
said J. Caleb Smith, in his life-time in and to the aforesaid piece or parcel of land, 
upon the payment to the said Austin £. Smith, aa such executor by the said Wil- 
liam McDaniel of the aforesaid sum of three thousand seven hundred and twenty- 
two dollars and fifty cents, with all interest accumulating thereon from the date of 
this order at the rate of two per cent per month. 

M. C. Blakb, 
County Judge and ez-qgicio Probate Judge. 
Hay 10th, 1868. 



i^o- ise. 

ANOTHER FORM OF SAME. (^ 208.) 

STimB OF CALm)RNiA, ) In Probate Court. 

County op San Franciboo. J * vua,i« wiu u 

In the Matter of the Petition of the Board of Education 
of the City and County of San Francisco for a decree 
authorizing and directing the Executors of Joseph L. 
Folsom deceased, to make a conveyance of Real Es- 
tate. 

Whereas a petition was duly presented to this court on the 12th day of Octoher, 
1867, by the Board of Education of the city and county of San Francisco, claiming 
to be entitled to a conveyance of certain real estate therein described, from the ex- 
ecutors of Joseph L. Folsom deceased, upon the facts set forth in said petition : 
And whereas this court appointed the 16th day of November, 1867, at the regular 
term of the probate court, held on that day at the probate court room in said city 
and county, as the time and place for bearing said petition, and did order notice of 
the pendency thereof, and of the time and place of hearing, to be published at least 
four successive weeks before said hearing, in the Daily Califomia Chroniele, a news- 
paper published in the State, city and county aforesaid. 

Now on this 16th day of November, 1867, it appearing upon proof by the affidavit 
of H. F. W. Hoffman that due publication of said notice has been made, and the 
executors of said Folsom estate appearing by their attorney, F. Billings, Esq., and 
admitting the facts set forth in said petition by their answer in writing to said peti- 
tion filed in this court, the court proceeded to hear the parties, and after a full hear- 
ing upon such petition and examination of the facts and circumstances of the 
claim, the probate judge being satisfied that the petitioners are entitled to a convey- 
ance of the real estate described in their petition, on motion of F. P. Tracy, attorney 
for said petitioner, it is ordered and decreed that said executors are hereby author- 
ized and directed to execute a conveyance of said real estate, being the fifby-vara 
lot numbered on the officiid map of said city of San Francisco No. 418, to said pe- 
titioners. 

Let the executors pay the expenses of this proceeding, taxed at $29 40. 

T. W. Freelok, County Judge. 



APPENDIX. Ixxi 

ffeettoiM 
Probate 
ig-O- 187- Act. 

PETITION FOR ORDER TO MAKE CONVEYANCE. (§ 208.) 

In the Probate Court of the ) 
Connty of San Francisco. ) 

To the Honorable John D. Creigh, Judge of said Probate Court : 

The petitioner, Donald Davidson, represents, that heretofore, to wit, on or about 
the 15tb of Aus;u8t, 1853, be entered into a contract with Eben. Knight to purchase 
from the said Knight the one undivided third part of the following described tract 
of land, to wit: 

[Here follows description of property, etc.] 

That on said day a memorandum of said contract was made in writing and signed 
hy the petitioner and the said Knight, a copy of which writing marked " Exhibit 
A," is hereto annexed and made part of this petition, and the original will be pro- 
duced and shown to the court. 

That the undivided share of Mr. Mayer referred to in said writing was the one 
undivided third part of the tract of land above described, which Jacob R. Mayer 
bad previously sold and conveyed, or contracted to convey to the said Knight. 

That the petitioner complied with the said contract on his part by the payment 
to the said Knight of the sum of four thousand dollars in cash and by delivering to 
him a promissory note for two thousand dollars, according to the conditions of said 
contract ; and the said Knight complied with the same upon his part by putting the 
petitioner in possession of the land and other property mentioned therein, but de- 
layed executing any conveyance of the land, intending and promising, from time to 
time, to do so. 

That the petitioner has ever since continued and is, in possession of said land and 
other property. 

That the said Knight never did execute nor deliver any conveyance of the said 
land to the petitioner as he was bound, and if living might be compelled, to do. 

That in the month of , 1853, the said Knight died intestate, and letters 

of administration on his estate have been granted by your honorable court to Car- 
lisle P. Patterson, who has duly qualified and is now acting as administrator. 

Wherefore the petitioner prays that the said administrator be cited to appear and 
answer this petition ; that after due notice given according to law, a decree may be 
made authorizing and directing the said administrator to execute and deliver to the 
petitioner a good and sufficient conveyance of the said undivided third part of the 
said describe! tract of land, and^that the costs of this application be ordered to be 
paid by the said administrator out of the estate of the said intestate. 

Cbittbndbn & Paob, 

March 7, 1854. Attorney for D. Davidson. 

[copy.] exhibit a. 

San Francisco, 15th August, 1853. 
Messrs. E. Knight and J. R. Mayer : 

Dear Sirs — As arranged with Capt. Knight on Saturday last, I have agreed to 
pmrchase Mr. Mayer's one undivided share or interest in your and Capt. Isham's 
ranch at Santa Rosa, including land, work horses, mules, hogs, cattle and other live 
stock, reaper and threshing machine, farming implements and ever} thing else be- 
longing to it, whether on the property or elsewhere, for six thousand dollars ($6,000), 
to be paid in the following manner, viz : four thousand dollars cash and a promis- 
sory note for $2,000 at six mouths date, bearing interest at the rate of two per cent, 
per month, on your putting me in possession of the property and handing me the 
necessary and proper title deeds for the same. You are to pay all outlay for wages, 
etc., on account of the ranch up to the 31st inst. 

[Signed.] D. Davidson. 

The above is, as I understood Mr. Mayer, and so stated to Mr. Davidson. If I 
am correct as above, I agree to it. [Signed.] E. Kbioht. 

I agree to the above. [Signed.] J. R. Matbb. 

San Francisco, August 25th, 1853. 
Received the within four thousand dollars cash and promissory note for two thou- 
sand, as there stated, and shall put in possession, etc., as agreed to, etc. 

[Signed.] E. Knight. 

[Previous to above agreement, Mr. Mayer sold his one-third share in the ranch to 
Capt, Knight.] 



Beetiont 

Probate 

Act. 



Ixxii APPENDIX, 

XTO. 188. 
DECREE FOB SUCH CONVEYANCE. f§ 208.) . 

Estate of E. Knight, deceased. ' 
In the matter of the petition of 
Donald Davidson for a convey- 
ance of land. 



In Probate Court. 
County of San Francisco. 



The petition of Donald Davidson, praying that Carlisle P. Patterson, admmistrator 
of the estate of £. Knight, deceased, be authorlssed and directed to convey to him 
the one undivided third part of a tract of land therein described, coming on to be 
heard this day, in pursuance of the adjournment of the same by the order of the 
court made on Monday, the JOth of March inst. ; and proof by affidavit having 
been made to the satisfaction of the court of due publication of the notice of the 
pendency of this application and of the time and place of hearing, as required by 
the order of the court ; and the said administrator having appeared and filed his 
answer to the petition, and no other objections having been filed ; and the court 
having considered the said petition, and the answer of the administrator, and having 
examined tbe facls and circumstances of ^he claim, and being satisfied that the pe- 
titioner is entitled to a conveyance of the real estate described in his petition as the 
same is prayed. 

It is ordered and decreed that, upon payment by the said Davidson of his promis- 
sory note to the said £. Knight, deceased, for two thousand dollars, part of tbe 
purchase money, and of all interest accrued thereon, the said Carlisle P. Patterson, 
administrator of the estate of said Knight, deceased, is authorized and required to 
execute, acknowledge and deliver to the petitioner, *Donald Davidson, a good and 
sufficient conveyance by deed of quit claim, of one undivided third part of the fol- 
lowing described tract or parcel of land, situated in the county of Sonoma, in the 
State of California, to wit : 

[Here follows description of the property.] 
Together with all the right, title and interest in and to tbe said undivided third 
part which the said E. Knight, deceased, had, or might claim on the 15th day of 
August, A. D., 1853, or acquired thereafter. 

And it is further ordered, that all costs of this application and of the making and 
acknowledging of said deed, be paid by the said administrator out of the funds of 
the estate in his bands. 

T. W. Fbehlon, Gonntj Ja^;e. 

A^rU 17th, 1854. 

3>TO- 13S. 

KESIGNATION OP EXECUTOR. ({ 100.) 

In the Matter of the Estate 1 In Probate Court, 

of > of the County of Santa Clara, 

Francisco Blanco, Deceased. ) State of California. 



To the Hon. John H. Moore, Judge of the Probate Court of the county of Santa 
Clara. 

I, James Stokes, at present one of the executors of the last will and testament of 

(100. Francisco Blanco, deceased, duly appointed and qualified as such, under the onler 

of this court on the tenth day of December, A. D., 1865, do hereby resign my said 

appointment as such executor, and pray to be duly discharged upon the settlement 

of my account, which is herewith filed. 

Dated, San Jose, June 8d, 1858. 

Jambs Stokes. 



RENUNCIATION BY EXECUTOR OF COMPENSATION PROVIDED FOR IN 

THE WILL. (§ 219.) 

In the Matter of, etc. Probate Court, etc. 

Whereas, by the last will and testament of A. B , deceased, duly proved and ad- 
mitted to probate in this county, I, Moses Schallenberger, was appointed executor, 



i 



APPENDIX. Ixxiii 

and provision in and by said will is made for compensation for my services as such 
executor, and whereas, I have elected to receive for such comi^ensation the fees and 
commissions allowed by law. Now, therefore, these presents are to witness that I 
have renounced and do hereby renounce all claim for compensation provided by 
said will as afoi*esaid, and do forever discharge, relinquish and acquit the same to 
said estate in consideration of the fees and compensation allowed by law. 
Witness my hand and seal this 12th day of October, A. D. 1857. 

MoSfiB SCHALLBNBEBOBB, [SBAL.] 

Sealed and delivered in presence of 
William Lobwt. 



S«ctionB 

Probate 

Act. 



NO- 141- 

EXHIBIT TO BE MADE AT THIRD TERM. (§ 222.) 

In the Matter of etc. Probate Court, etc. 

In accordance with the provision of the statute requiring the administrator of an 
estate at the third term after his appointment, to render for the information of the i ^^• 
coart an exhibit under oath, showing 

Ist. The amount of money received and expended. 

2d. The amount of all claims presented against the estate, and the name of the 
claimant. 

3d. All other matters necessary to show the condition of its affairs. 

I, William Mathews, administrator of the estate of, d^c, do hereby, at this, the 
third term after my appointment by this court as such administrator, make and 
render this my account and exhibit of said estate. 

1. Moneys received, as follows : 
Prom the sale, of personal property, - - - . - 

•* " rents of real estate, - - - . - 

" interest moneys, -----,. 

2. Claims against the estate : ' j 289. 
Funeral expenses, N. Gray, ----., 
Physician's bill, expenses of the last sickness, Dr. C. G. Bryant, 
Note of hand, J. Lawrence Pool, approved, - - - . 
Mortgage, H. P. Janes, approved, - - . , . 
Taxes for 1867-8, -.---.. 
Other small debts, less than (20 each, ..... 

3. The affairs of said estate : 

The debts of said estate amounting to nearly $16,000, and the moneyed assets to . ^^^ 
$2,200, a deficiency of some $14,000 remaiiis, which renders necessary a sale of » ^^• 
some real estate, an application for which purpose is about being made to thi« 
court. 

William Matthbwb, Administrator. 

State of California, County of Santa Clara, m. 

William Matthews, administrator of the above named estate, being duly sworn, 
Bays that the foregoing exhibit and statement rendered by him are true in substance 
and in fact. 

Sworn to before me, this 10th day of May, 1857. William MATTHBWSb 

AusTiir L Thompson, Notaiy Public. 



$1,000 00 


500 00 


700 00 


200 00 


250 00 


10,000 00 


5,000 00 


379 36 


73 65 



4 147. 



l>TO. 14S- 
PETITION THAT ADMINISTRATOR RENDER AN EXHIBIT, (j 224-) 

[Title of estate and court.] 

To the Honorable Probate Judge, etc. 

The petition of, etc., showeth, that A. B. was duly appointed adminlstanior of 
said estate on the third day of May, A. D. 1857, that the third term of this court 4 224. 
bas elapsed since said appointment was made, and said administrator had not ren- f 222. 

J 



Beetioni 

^^** dered to this court any exhibit of the tooneys received, the claims presented, and 
the condition of the aflkirs of said estate. 
That your petitioner has a claim against said estate of $7,000, which has been 
^ 224. dnly presented and has been approved and allowed by said auministrator and b}' 
this court, and is now on file for payment in due course of administration ; that said 
administrator, although directly applied to by this petitioner, will not give any in- 
formation as to the condition of said estate, nor as to the means of payment of its 
debts Including tiiat of your petitioner, as aforesaid ; that said administrator also is 
absent from this county, on business in the mining regions of this State, being there 
a large operator in quartz, and appears and professes to pay little or no attention to 
the affairs of this estate ; 

That it is the intention of your petitioner, if it be necessary, to move for the sale 

of real estate to pay the debts of said estate, but he cannot ascertain by application 

^ 164. to said administrator sufficiently, the condition of said estate to determine that ne- 

oessity. 

Wherefore your petitioner prays that said administrator may be cited to appear 
and render an exhibit, such as is required by the statute to be made by an admin- 
( 226. istrator at the third term after his appointment, within such time as to this court 
may seem just, and which youy petitioner prays may not exceed ten days. 

C. D. 
[Sworn to, as in No. 86.] 

ig-O- 143. 
ORDER FOR CITATION. (§ 226.) 

[Title of estate and court.] 

On reading and filing the petition of G. D., and it being shown to the satisfactioB 
of this court, by the oath of said petitioner and by the testimony offered therewith, 
that the facts therein alleged lare true, and the showing therein and thereby made 
by said 0. D. being considered sufficient; 
6 226 It is hereby ordered that a citation issue against A. B., the said administrator, 
requiring him to appear before this court, at the court room thereof, at the City 
Hall, in t^e city and county of San Francisco, on the 8th day of August, 1867, at 11 
o'clock, A. M., the same being a day of the term of this court, and render 

an exhibit of the said estate, such as is required by the statute to be rendered at the 
third term of the court after the appointment of an executor or administrator, and 
such as may be sufficient to meet the object of said petitioner, as set forth in his 

application. 

M. N., Probate Judge. 

[Dated, etc.] 

3NrO. 144. 

ORDER TO SHOW CAUSE, ETC., ON FAILURE TO RENDER AN EXHIBIT 

AS ORDERED. (j227.) 

[Title of estate and court.] 

On reading and filing due proof of service of the citation ordered in thii^ matter, 
§ 226. ^jj ijiie 20th day of July, 1867, on the application of C. D. requiring A. B., admin- 
istrator of this estate, to render an exhibit of said estate to this court on the 8th 
day of August, 1867, and said time having elapsed and said administrator not hav- 
ing rendered said exhibit ; [or and it appearing to this court, upon the showing of 
said petitioner, that the exhibit filed by said administrator is only partial and does 
not contain a fkH stiitement of said estate, and such as to enable said petitioner to 
ascertain the necessity of a sale of real estate to pay debts ;] 
It is hereby ordered, that said administrator do, within five days, furnish a full 
X 227 and complete exhibit of said estate, according to the terms of the statute specifying 
* such exhibit ;[ or, It is hereby ordered that a citation issue Ugainst said adminis- 
trator to appear and show cause why an attachment should not issue ; or, It is hereby 
i*WM ordered, Uiat his lettws of administraticMi be and the same are hereby revoked.] 

M< N., Probate Judge. 



APPBNDIX. boCV 

^ probate 

N'O- 146. Act. 



EXCEPTIONS TO EXHIBIT. (}228.) 
[TiUe of estate and court.] 

C. W. Kendall, one of the creditors of this estate, presents his objections in wri- 
ting to the exhibit filed in this court on the first day of May, 1857, by K. L., ad- 
ministrator, as follows : 

1st. That said administrator has allowed and approved the claims of A. Oakey 
Hall against the said estate fbr $5,000, without the same being accompanied by the 
proper and legal affidavit and without vouchers, and said claim this petitioner al- § 131. 
leges is not due in point of fact. 

2d. That he has allowed and approved the claim of WiUard L, Felt which, as x ^gg 
appears by the date thereof, is barred by the statute of limitations. 

[Dated, etc.] 

C. y(. EsNDALIi, 

By Wm. Matthews, his Attorney. 



3NrO- 140. 

PETITION TO COMPEL AN ACCOUNT. (§ 228.) 

In the Matter of etc. In Probate Court, etc. 

To the Hon. the Probate Judge, etc. The petition of Frederick Perring, respect- 
fully showeth : / 

That your petitioner is a cre4itor of said deceased ; that his claim amounting to 
the sum of two thousand dollars has been duly presented and approved, and is fil^d 
in court for payment i that CD., the administrator of this estate was appointed 
and qualified as such, on the 10th day of May, 1857, more than one year ago, and 
that he has never filed an account of his administration. 

Wherefore, your petitioner prays that said administrator be compelled to render ^ 228. 
a fall account of his administration to this time, or that his letters be revoked, and 
for bhat purpose, that a citation be issued, requiring him to appear and show caus^ ^ 288. 
why an attachment should not issue. 

Fbbdebiok fEBitiira, 

[Swpm tQ 849 in No. 85.] 

3>TO- 147- 
ORDER ON THE FOREGOING. (§ 228.) 

In the Matter of, etc. In Probate Court, etc. 

On reading and filing the petitition of A. B., duly verified, praying thatC. D.,the 
administrator of the estate of E. F., deceased, be compelled to render an account. 

It is hereby ordered, that the said 0. D., render a full account of his administra- v ?^' 
tien of said estate, and file the same in this court, on, or before the tenth day of 
June, 1858 ; aiid upon failure thereof, that a citation issue, requiring him to appear 
and show cause before this court, why an attachment should not issue. Such eitar A ^38. 
tion to be made returnable in ten days from that day. 

Dated, June Ist, 1857. 

M. N., Probate Judge. 



XQ'O. 148. 
CITATION. (§228.) 
In the Matter of the Estate! j^ p^^^^^ ^^^^ 

E. P., Deceased. ) ^'^^ *^^ ^^^*y ^ ®^ Francisco. 

The People of the State of California, to the Sheriff of the City and County of Saa 
Francisco, greeting ; 

By order of this court, you are hereby required to cite C. B., administrator of the a 033 
Q9tat« of E, F., deceased, to appear befbre this court at the court room thereof, at 



Ixxvi 4 APPBN1>IX. 

■ietlou 

*^^** the city hall, in the city and county of San Francisco, on the 20th day of June, 
228. 1868, at 11 o'clock, in the forenoon of that day, then and there to show cause why 
290. an attachment should not issue for failing to render a full account of his adminis- 
289. tration as required hy the order of this court heretofore made, and make due return 
hereof. 

Witness, the Hon. M. C. Blake, Judge ex officio of our probate court, in and for 
[bbal.] the city and county of San Francisco, with the seal of said court affixed, 
this 11th day of June, A. B., 1868. 

Attest ; William Dfbb. Clerk, 

By Chablbb S. Capp, Deputy. 



[For form of Attachment, see <mU forms No. 66 and 66.] 

I^O. 14tS. 

KEVOCATION OF LETTERS FOR FAILING TO ACCOUNT AS ABOVE OR- 
DERED. (^230.) 

In the Matter of, etc. In Probate Court, etc. 

Application having been made to this court requiring C. D., the administrator 
\ 228. herein, to render a fUIl account of his administration, and order haying been made 
on the 1st day of June, 1867, that such account be rendered within ten days from 
that date, or that citation issue requiring the said administrator to show cause why 
his letters of administration should not be revoked ; said administrator not having 
rendered any account, and the period of one year and more having elapsed since 
the time of his appointment ; and due proof being now made to this court and filed, 
that said order was duly served upon said CD., administrator, and that having 
§ 290. failed to file his account as ordered within ten days, said citation was duly issued, 
and is now returaed into court; and it appearing by the return of the Sheriff, duly 
6 230 6i^<^o^8^ ^6^6^^; ^^^^ ^- ^M administrator as aforesaid, conceals himself, (or has 
^ ' absconded or resides out of the county) so that the said citation cannot be per- 
sonally served, and thirty days having elapsed since the time prescribed by law for 
} 228. filing said account, to wit : one year after the time of his appointment, and he having 
still failed and neglected to render his said annual account. It is hereby ordered, 
that his letters of administration be, and the same are hereby revoked. 
June 1st, 1867. 

M. N., Probate Judge. 



ITO. ISO. 

REVOCATION OF LETTERS AFTER COMMITMENT. (} 230.) 

In the Matter of, ete. In Probate Court, ete. 
A. B., executor of the above named estate, having been duly cited herein to show 



^228. 

§ 228. cause why an attachment should not issue against him for failing to render an 
account of his administration, and upon the return thereof, having failed to show 
any just and proper cause, and said attachment having been executed, and said 
executor having been committed into custody thereon, and the period of thirty days 

§ 230. having elapsed since said commitment, and said account not having been rendered 
and filed, it is hereby ordered, that the letters testamentary heretofore issued to 
said A. B., executor, be, and the same are hereby revoked, and that his commit- 
ment be discharged. 

M. N., Probate Judge. 
Dated, etc. 



ORDER APPOINTING DAY FOR SETTLEMENT OF ACCOUNT. {% 233.) 

In the Matter of, etc. In Probate Court, ete. 

§ 249. A. B., administrator, having filed his annual (or final) account of his administra- 
tion of the estate of C. D., deceased, in this court, and rendered the same for settle- 
§ 233. ment; it is ordered, that Monday, the 6th day of October, . 1867, being a day of 



APPENDIX. Ixxvii 

Sections 

term of this court, to wit : of the term of 1857, at eleven o'clock. A. M., be ap- Act. 

pointed for the settlement of the same, and that the clerk of the court give notice 
thereof, by posting up notices in at least three public places in this county, at least 
ten days before said day of settlement, according to law. 

M. N., Probate Judge. 
September 20th, 1867. 



:M'0. 1G8. 
NOTICE FOR POSTING OF SETTLEMENT OF ACCOUNT. ($ 288.) 
Id the Matter of, etc. In Probate Court, etc. 

Notice is hereby given, that the account of A. B., administrator of the estate of ^ 283. 
C. D,, deceased, has been rendered to said court for settlement, and that Monday, 
October 6th, 1857, at 11 o'clock, A. M., has been duly appointed by said court for 
settlement ; at which time, any person interested in said estate, may appear and file 
his exceptions in writing to said account, and contest the same. 

San Francisco, Sept 20, 1867. 

M. N., Probate Judge. 
[For proof of posting notices, see anUf No. 17.] } 238. 



NO- 163- 

APPOINTMENT OF GUARDIAN ad litem ON SETTLEMENT OF ACCOUNT' 

({ 235.) 

In the Matter of, etc. In Probate Court, etc. 

The account of A. B., administrator of the estate of C. B., deceased, having been 
rendered for settlement, aiad it appearing to the court that E. W., a minor, is inter- 
ested in the estate. It is hereby ordered, that Horace P. Janes, Esq., a disinterested t 235. 
person, be appointed to represent the said minor, and on his behalf, to appear on 
the settlement of said account and contest the same as may be for the best interest 
of said minor. 

M. N., Probate Judge. 

Sept 20th, 1857. 

l>TO. 164:- 

EXCEPTIONS TO ACCOUNT OF ADMINISTRATOR. (§ 234.) 

In the Matter of, etc. In the Probate Court, etc. 

Horace P. Janes, duly appointed by this court, guardian ad lUem, to represent § 235. 
the minor heirs of the above named estate upon the settlement of the account ren- 
dered by A. B., administrator, contests the said account, and says, that the same 
ought not to be allowed and approved as filed, and makes the following exceptions § 234. 
thereto. 

1. He contests the claim of Jacob Saxe, on the ground that the same is 

barred by the statute of limitations, (872 50 § 135. 

2. He contests the claim of James Dellot, being a promissory note alleged 

to have been made by deceased, * on the ground that said note was 
never made by deceased, and that his pretended signature thereto is 
a forgery, $1,000 00 

8. He contests the charge made for commissions, expenses, etc., by B. t n-ig 

Q. & Co., auctioneers, on tho sale of real estate, as being excessive, ^ 

and containing items not allowed by law, $732 81 

4. He contests the charge by said administrator for carriage hire, as 

being unnecessary, $175 00 { 219. 

6. He contests the charge of repairs to tenements on Jackson street for § 114. 

lack of voucher, $188 50 

6. He contests the charges of administrator's commissions as being more 

than authorized by law, $4,872 25 § 221. 



Ixxviii APPENPIX^ 

Seotiens 

^ct. 7. He contests all the items over twenty dollars, not accompanied bj voacher^ 

{ 232. 8, He contests the amount of estate acoonnted for, said administrator not showing 

2iQ^ that the deficiency betweep his account and the amount charged in the inventory 

2X7* is without his fault. 

218. 9. Qe contests said account, because said administrator has not accounted to the 
i 217. estate for profits made by compromising certain claims. 

* 220. October 5th, 1867. 

HoBACB P. Jakbb, Guardian ad Utem^ etc. 



APPOINTMENT OP AUDITOR, (236.) 
In (he Matter of, etc. In Probate Court, etc 

A. B., the administrator of this estate, having rendered his account for settle- 
ment, and notice of such settlement having been duly given for this day as ordered 
i 236. by the court, and Horace P. Janes, Esq., the guardian ad Utem, appointed by this 
court to represent the minor heirs interested herein upon the settlement of said 
account, having appeared and filed exceptions thereto. 

It is hereby ordered, that the said account be referred to William H. Sharp, Esq.. 
as auditor and referee, to examine and pass upon the same, and make report to this 
court within one week, and that the settlement of said account be continued until 
the 12th October, inst., at elev^A q'(^qc1(, A. M» 

M. N., Probate Judge. 

October 6th, 1868. 



OEPBR OF BETTLBMENT OF ANNUAL ACCOUNT. 

In the Matter of, eta In Probate Court, etc. 

§ 228. The annual account of A. B , administrator herein, heretofore rendered, coming 
on for settlement on the 5th day of October lust., at which time proof was made to 

!238. the satisfaction of the court and filed herein, that due notice of the settlement there- 
285. of had been given, and Horace P Janes, Esq., duly appointed guardian ad litem to 
J 284. represent the minor heirs, appeared and filed his exceptions to said account, and 
236. the said account was referred to Wm. H. Sharp, Esq., as an auditor to examine the 
same and report thereon, and said settlement was continued to this day by order of 
{ 287. the court duly entered upon the minutes thereof. 

And now upon this 12th day of October, 1867, at eleven o'clock, A. M., the time 
appointed as aforesaid, the said matter coming on to be heard and the report of said 
§ 286. auditor being filed, showing that the said account is correct and is duly sustained 
§ 231. by sufficient and proper vouchers, except as to the item of $158 50, and that the ex- 
ceptions of said guardian ad Utem are without foundation, except as to the item 
§ 221. above named, the item for commissions, $4,872 25. the same not being chargable 
until a final account be rendered, and the item of the claim of Jacob Saxe for $872 
6 135. 50, which is barred by the statute of limitations, making in all the sum of $5,403 
§ ^^. 25 and no exceptions being made to the said report, the same is confirmed. 

And the allegations of the various parties being heard and considered. It is hereby 
ordered, adjudged and decreed, that the said account being 90 settled, to wit : the said 
items of credits to said administrator to the amount of ^,408 25 being disallowed, 
§ 237. the said account be and the same is hereby in all other respects allowed and con- 
firmed. 
And it appearing that the said administrator has in his hands the sum of $25,872 
§ 239. in cash, that the debts due by said estate aro all of the 5th class in the order of 
payment ; the funerad expenses, the expenses of the last sickness and the expenses 
of administration to this period having been paid, and that said debts, amounting 
6 181. to the sum of $60,000, have bera duly presented and allowed in the manuM* re^ 
§ 132. quired by law. 

It is further ordered, acUudged and decreed, that said administFator do pay up- 
§ 245, on said debts a dividend of fifty per cent out of the paid sum of $25,872, in his 



APPBNDlX.i Ixxix 

Sections 

hands as aforesaid, to wit : That he pay to the creditors hereinafter named the am- ^9**^*® 



Act. 
§243. 




cants fixed after their names respectively, as follows : 

B. C. & Co., J6,680 00 

H. W., 3,110 00 

Etc., etc., - - - -- - - - etc., etc. 

Making in all the sum of $25,000, and that he pay to said guardian ad litem and 
said auditor the sum of fifty dollars each for their services herein rendered, leaving 
k his hands th« sum of $772 cash of the property of said estate ; 

And there being still a considerable amount of real estate unsold, and the debts I 

being not all paid, | 

It is further ordered that this administration be extended for the period Of six { 247. I 

months for a final settlement of the estate. | 

M. N , Probate Judge. 

October 12th, 1857. 



PETITION BY CREDITOR TO COMPEL AN ACCOUNT. (§ 228.) 
In the Matter of the Estate \ . In the Probate Court, 

Archibald A. Ritchie, Deceased. J ^^ *^« ^'^^ *°^ ^^^'^^ <>^ San Francisco. 



The petition of John P. Osgood, of the city and county of San Francisco, respect- 
fully shows to the court : 

That he is the legally authorized attorney in fact of Lawrence Lewis, Jr., and Henry 
M. Olmstead, assignees of William Piatt & Sons, and of Joseph B. F. Osgood, trus- 
tee, etc., creditors of the said estate of Archibald A. Ritchie, deceased ; 

That since the rendering of an account by the administrators and administratrix 
of said estate they have, as your petitioner is informed by one of said administra- 
tors, and believes, sold large amounts of property belonging to said estate, and re- 
ceived large amounts of money the proceeds of said sales, and of sales made prior 
to l^e rendition of said accounts, and that said administrators have on hand or 
should have on hand a sufiicieut amount of money to make another liberal divi- 
dend to the creditors of said estate ; that petitioner has repeatedly requested the 
attoiueys of said administrators and administratrix to make such dividend, but they 
have wholly failed and neglected to comply with such request ; 

Your petitioner therefore prays that said administrators and administratrix may 
be cited and required to account to this honorable court for all their transactions 
since the rendition of their last account and may be ordered to divide amongst the 
creditors of the estate as much as may be found remaining in their hands subject to 
distribution. 

JoBH F« Oboood. 

[Sworn to, as in No. 35.] 

ORDER TO ACCOUNT. {% 228.) 

In the Matter of the Estate 1 In the Probate Court 

of > in and for the County of San FranciscOi 

Archibald A. Ritchie, Deceased. ) State of Califomia. 

On reading and filing the petition of John F. Osgood, praying that the adminis- 
trators and administratrix of the said estate account, and that a dividend be ordered 
to the creditors thereof. 

It is hereby ordered, that the administrators and administratrix be cited and re^ 
quired to account to the court for all their transactions since the rendition of their 
last account, and that Monday, the first day of February next, be fixed for the 
hearing thereof. 

T. W. Frbblon, County Judge. 

January 18th, 1858. 



IXXX I APPENDIX. 

Soetioni 
Probate 

Act. :n'0. 160. 

APPOINTMENT OP GUARDIAN AD LITEM AND CONSENT. (§ 235.) 
In the Succession 



i] o' 



In the Probate Court 
Archibald A. Ritchie, Deceased. S "' '^ ^**™*y "^ ^*° ^"""'•"o- 



The account to date, of the administrators and administratrix of said decedent, 
coming in this day on request of Thornton, Williams 6l Thornton, attorneys for said 
administrators and administratrix, that a guardian ad Utem be appointed to repre- 
sent the interests of the minor heirs and distributees of the said decedent upon the 
allowance and settlement of said accounts ; It is ordered by the court that Edward 
J. Pringle be and is hereby appointed guadrian cut litem for the purpose aforesaid. 

T. W. FsBBLOv, County Judge. 

I do hereby accept the above appointment. 

E.DWABD J. Pbivolb, Guardian ad litem. 

And I do hereby, on behalf of said minor heirs and distributees, consent to the 
allowance of said accounts and the settlement thereof as presented by the adminis- 
trators and administratrix. 

EnwABD J. Pbinglb, Guardian ad litem 

March 4th, 1858. 

isro, leo. 

ORDER ALLOWING ACCOUNT. (§ 237.) 
In the Matter of the Estate ^ ^ ^^^^ ^^^^^ 

A. A. Ritchie, Deceased. ) ^'^^ *^^ ^°'^'^*y ^^ ^^^ Francisco, March 8, 1858. 



The account of the administrators and administratrix of the decedent, above 
named, heretofore filed, coming up for consideration this day, and it having been 
proved to the satisfaction of the court, that the proper notice as required by law 
has been given by the clerk by causing the usual notices to be posted up in three 
public places in the city and county aforesaid, of the settlement of said account, 
and that no exceptions have been taken or filed to the allowance of said account, 
but that the same has been consented to in writing by Edward J. Pringle, the guar- 
dian ad liteniy for the minor heirs of said decedent ; it is ordered that the said 
account be, and the same is hereby allowed. 

And it is further ordered, that the usual commissions prescribed by law, be allow- 
ed said administrators and administratrix, and that all claims for any further allow- 
ance be reserved for the further action of this court. 

T. W. Fbbbloit, County Judge. 



i^o. lei. 

ORDER FOR PAYMENT OF DIVIDEND. (^ 241, 248.) 



In the Matter of the Estate 1 Court of Probate, 

of > for the County of San Francisco and 

A. A. Ritchie, Deceased. ) State of California. 



In this succession, on motion of Thornton, Williams & Thornton, attorneys of the 
administrators and administratrix, a dividend of ten per cent on the amount now 
due is ordered to be paid by the said administrators, Robert H. Waterman and James 
N. Hamilton, and the administratrix, Martha A. Ritchie, on all claims which have 
been allowed, except those secured by mortgages, unless the debt exceed in value 
the mortgaged property, in which case the same dividend may be paid on said 
excess. Upon making payment, the said administrators and administratrix are re- 
quired to take the receipt of such creditor, referring in each receipt to this order, 
by its date. 

This order is made without prejudice to the rights claimed by said Martha H. 
Ritchie, widow of the said decedent, to the conmion property of said estate, viz : 



APPBNDIX. IxXXi 

8e«tioiM 
to 006 half of the said common property, free fk'om aay charge or obligatkHi to pay Probate 
any of the debts at any time contracted by the said decedent. The administrators ^^ 
and administratrix will make report to this court of the payments under this order. 

T. W. Freblon, County Judge. 



i»TO- lea. 

PETITION BY EXECUTOES FOR OEDER TO PAY DIVIDEND. (§ 241, 242.) 

To the Hon. T. W. Freelon, Judge of the County Court for the County of San Fran- 
cisco, and ex officio Probate Judge. 

The petition of H. W. Halleck, A. C. Peachy and P. W. Van Winkle, ezecutora 
of the last will and testament of Joseph L. Folsom, deceased, by their attorney, 
Frederick Billings, respectfully represents: That the following schedule marked 
" A," contains a list of the claims against the estate of the said Folsom, allowed by 
the executors and approved by your Honor, as probate judge, and now filed in 
court, and the claims established against said estate by judgments, (exclusive of the 
claims allowed by your petitioners in favor of the trustees of the " City Market 
Company, ' and of a judgment in fovor of the United States, in the United States 
Circuit Court, which judgment has been fully paid^) and also a list of the original 
amounts of mortgages on parts of said estate, the rates of interest which they seve- 
rally bear, and the amounts paid on each from the proceeds of the sales of the pro- 
perty so mortgaged ; which schedule, they pray may be taken as a part of this pe- 
tition. 

And your petitioners further represent that they are informed and believe that all 
the claims therein set forth have been filed with the clerk of this court. 

And your petitioners further represent that they have on hand moneys belonging 
to the said estate for distribution, sufficient to pay forty (40) per cent on said claims 
and judgments, principal and interest. 

Your petitioners therefore respectfully pray , that an order may be entered, author- 
izing them to pay said creditors of said estate named in said schedule, fbrty (40) 
per cent, principal and interest, on the amount due to each, on the fifteenth day of 
June, A. D., 1867, and that the payments be endorsed on said claims, and that when 
so paid, your petitioners may have credit therefor, and for the amount thereof, in 
their account with said estate in this court, excepting the said claim of the Trus- 
tees of the City Market Co., and said judgment in the United States Circuit Court, 
and also a mortgage held by Abel Guy, dated the 9th day of September, A. D., 
1854, for $40,000, with interest, at the rate of 2 1-2 per cent per month, which said 
mortgage has been a subject of litigation between your petitioners and said Guy in 
the Fom-th Judicial District Court in which said court has decreed (in May last) the 
said Guy to credit said mortgage with the sum of fifteen thousand four hundred 
and fifty (16,460) dollars, for the purchase of property by him, covered by said 
mortgage at a sale of your petitioners of real estate held on the 13th and 14th days 
of November, 1856, for which said judgment, the said Guy has taken the prelimi- 
nary steps for an appeal to the Supreme Court; 

FREDERICK BILLINGS, 
Attorney for Executors. 

[Here foUowa the Schedule referred to.] 



i^o. xes. 

ORDER TO MAKE PARTIAL PAYMENT. (J 241 to 343.) 

Ta the matter of the application of H. W Halleck, 
A. C. Peachy and P. Warren Van Winkle, executors 
of the estate of Joseph L. Folsom, deceased, for an 
order to make a partial payment of the debts al- 
lowed against the estate by the Executors, and 
those established against the estate by judgments. . 

Upon reading and filing the petition of the said executors, and the schedule of: 
creditors of said estate thereto annexed, and on moUon of Frederick Billings, £&<).,. 
attorney for the executors, and it appearing to the satisfaction of the court that th*' 
statements set forth in the petition of which the schedule is made a part, an trust 
K • 



Act. 



IxXXii APPENDIX. 

Sectioni 

Probate j^ {g hereby ordered and decreed, that the said executors do pay forthwith, upon 
presentation of their respective claims, the said creditors, forty per cent on the 
amount thereof, principal and interest, and that the said claims filed in this court, 
as represented in said schedule, be withdrawn by the respective creditors or their 
assigns, for the purpose of presentation to said executors, so that the amount paid 
can be endorsed thereon, and then returned to the files of this court by the said 
creditors. 

And it is further ordered, adjudged and decreed, that all payments made by said 
executors, under, and by virtue of this order, be allowed and credited to them in 
their accounts as executors of said estate. * 

It is further ordered, that this order for a partial payment of forty per cent, does 
not include the payment of the claims of the trustees of the City Market Company, 
nor of the said judgment in the United States Circuit Court, nor of the mortgage by 
the said Folsom to Abel Guy, dated the 9th of September, 1854, for $40,000 which 
has been the subject of litigation between the said Quy and the said executors. 

T. W. Freelon, County Judge. 



3SrO, 164. 

ISSUE ON EXCEPTION TO ACCOUNT, FRAMED AND CERTIFIED TO DIS- 
TRICT COURT. (§ 234, 294, 295.) 

In the Matter of the Estate | ^^ p^^^^^^ ^^^ 

William W.CateB,Deceased. ) ^"^ ^^ ^^^^^^ ^^ ^^^ Francisco. 

Richard F. Perkins, the administrator of the estate of William W. Cates, deceased' 
having rendered a final account of his proceedings as such administrator, from which 
it appears that said administrator has allowed as a just and valid claim against said 
estate a certain promissory note for eleven hundred dollars, dated October 16th, 
1853, presented by one C B. Cates and purporting to have been executed by said 
decedent and James Qrant, and Mary Qrant, his wife, heirs at law of said decedent, 
having filed written objections to the passing of said account, alleging that said 
promissory note so presented to and allowed by said administrator is false and 
fraudulent, and that the same is a forgery ; Now, on motion of Messrs. Janes, Lake 
&> Boyd, attorneys for said objectors, counsel for said C. B. Cates the claimant, 
consenting thereto, it is ordered that the issue of fact thereby joined, to wit : " Whe- 
ther said promissory note so presented to and allowed by said administrator be . or 
be not false and fraudulent, and a forgery," be and the same is hereby certified to 
the District Court of the Twelfth District in and for the city and county of San 
Francisco for trial. 

M. C. Blake, Probate Judge. 

3SrO- 166. 

ORDER ALLOWING FINAL ACCOUNT. (§ 237.) 

In the Matter of the last Will and Testament J In the Probate Court of the 

of >■ C ity and County of San Francisco, 

Henry A. Harrison, Deceased. ) March 16th, 1858. 

Present : the Honorable T. W. Freelon, Probate Judge. 

On reading and filing the final account of William T. Hoffman, executor of the 
last will and testament of Henry A Harrison, deceased, filed in this court on the 
first day of March, A. D. 1858, and also, on reading and filing the report of D. P. 
Belknap, Esq., the auditor to whom it was referred by this court, by order dated on 
the said first day of March,. A. D., 1868, to audit and report on the name by 
which it appears that said account is in all respects correct. And upon hearing, the 
said William T. Hoffman, executor, and E. W. Taylor, Esq., guardian ad litem^ ap- 
pointed to represent the interests of the absent minor heirs and devisees upon the 
settlement of said account, no one appearing to oppose ; and it having been first 
fully proved to the satisfaction of this court that due and legal notice has been 
given of the time and place of settlement as required by law. It is hereby ordered, 
adjudged and decreed, that the said account of the said executor be, and the same 
is hereby passed and allowed, and the said report is hereby accepted and confirmed. 



APPENDIX. Ixxxiii 

Sections 

And it is further ordered, that the said executor pay to B. W. Taylor, Esq., guar- ^1^^ 
dian, ad litem, the sum of twenty-five dollars, and to said auditor, the sum of twenty 
dollars, their fees in the premises, out of the estate of said deceased. 

T. W. Frbeloit, County Judge. 



nsroj 166- 

ORDER ALLOWING GUARDIAN'S ACCOUNT. (§ 287.) 

At a Probate Court held, in and for the City and County of San Francisco, on the 
fifteenth day of December, A. D., eighteen hundred and fifty-seven. 

Present : Hon T. W. Freelon, Probate Judge. 

In the Matter of the Estate and guardianship 

of 
Mary Evelina Brunell, an infant. 

On reading and filing the annual account of Orson A. Reynolds, guardian of the 
person and estate of the said Mary Evelina Brunell, an infant, filed in this court on 
the thirtieth day of November, A. D., eighteen hundred and fifty seven, and the 
Touchers appertaining thereto ; and also the statement and petition of said guar- 
dian, annexed to said account, and on examining said account and vouchers, and 
the same appearing in all respects satisfactory to this court, and also, on filing the 
notice required by law to be given of the settlement of said account with the proof 
of publication or posting, as required by law, and no person appearing to oppose. 
Now, therefore, it is hereby adjudged and decreed, that the account of the said Or- 
son A. Reynolds, guardian, etc., be, and the same is hereby passed, approved, and 
allowed, as rendered by him. And it is hereby further ordered and decreed, that 
the said guardian be, and he is hereby allowed the sum of seventy-five dollars per 
month, for the support, maintenance and education of the said Mary Evelina Bru- 
nell, for and during the year following the seventh day of October, A. D., eighteen 
hundred and fifty seven, to be paid out of the income of the estate of said infant. 

December 14th, 1867. 

T. W. Freelon, County Judge. 

3SrO- 167, 

DECREE OF CONFIRMATION OF FINAL ACCOUNT AND CLOSING THE 

ADMINISTRATION. 

At a Probate Court held at the City Hall, in the city and county of San Francisco, 
at the January Term of 1868, of said court, to wit : on the first day of Febru- 
ary, 1868, 

Present : Hon. T. W. Freelon, Probate Judge. 

In the Matter of the Estate ^ 

of > Final Decree. 

Percy G. Clare, Deceased. ) 

Whereas Thomas H. Selby, heretofore to wit : on the first Monday of January, 
1867, duly appointed by this court administrator of the estate of Percy Q. Clare de- 
ceased, on the 11th day of January, 1868, filed in this court his final account as 
such administrator with a petition praying that a day be appointed for a settlement 
of the same, and that the administration be closed, and thereupon a day having 
heen duly appointed by this court, to wit : the 26th day of January, 1868, for the § 233. 
settlement of said account and for hearing the proofs and allegations of said party. 

On which day, at the time and place named in said order, said administrator ap- 
peared in person and by J. A. McDougall, Esq., his attorney, and due proof was 
made to the satisfaction of this court and filed herein, that notice of the settlement § 238. 
of said account had been given by the clerk of this court by causing notices to be 
posted in three public places in the said county, on the day of filing said account, § 288. 
setting forth the name of this estate and of the administrator, and of the day ap- 
pointed by this court for the settlement of said account, the same being a day of 
term of this court, 




Ixxxiv APPENDIX. 

SoOtfOlM 

^*^** And also appeared 8. H. Brodie, Esq., duly appointed by thii conrt to represent 
§ 235. the minor heirs of this estate npon said settlement, 
§ 234. And also appears Simon L. Jones and Edward W. Willett, creditors of said estate, 

by 0. L Bhafter, Esq., their attorney, 
} 236. And the hearing and allegations of the respective parties being adjourned to this 
$ 287. day by order of the court duly entered upon the minutes thereof, 

And now upon this first day of Februvy, 1858, the said matters coming on for 

§ 236. final settlement, and the report of James D. Thornton, Esq., the auditor to whom 

§ 231. was referred said account, being filed, showing that said account is correct and fully 

I 232. sustained by proper and legal vouchers on file, and no exceptions having been filed 

to the same, and a AiU investigation of the said administration having been made 

before the court, and all the parties interested being heard, and the court having 

duly considered the matter of said final account and the proceedings of the admin- 

istration. 

And it appearing to this court from the showing and the proolb, as follows^ to 
wit: 
That the said administrator in his account has duly charged himself with the 
§ 216. whole of the estate of the deceased which has come to his possession, at the value 
I 217. of the appraisement contained in the inventory, and also with all the increase, pro- 
fit and income thereof, and that he has accounted for and explained, to the satis- 
faetion of this court, all losses by the decrease or destruction of any part of the es- 
§ 218. tate.^nd by uncollected debts, showing that he is not responsible and that the same 
are without his fault ; 

6 128. ^^^^ ^^® requisite notice to creditors, in proper form, was duly published as di- 
rected by the order of this court, immediately after his appointment, and that all 
the proceedings in the administration have been conducted fairly and justly and in 
accordance with the provisions of the statute regulating the same, and the said ad- 
ministrator has not in any manner mismanaged nor wasted the said estate, and that 
all the proceedings necessary to a final settlement of said estate have been had^ 

§ 239. That the said administrator has paid debts of the 1st and 2d classes, to wit : the 
§ 242. funeral expenses, the expenses of the last sickness, and the allowance made to the 

family of the deceased and all the necessary expenses of administration up to this 

time; 
That there are no debts or claims established against said estate of the 3d class, 

to wit : debts having a preference by the laws of the United States, and that there 

is a sufficient amount of money in his hands to pay such debts of the 4th class, to 
§ 239. wit : judgments rendered against said deceased in his life- time, and mortgages in 

the order of their date, as are established to be preferred claims ; 

That there are three mortgage claims which were a lien upon one and the same 

tract of land of different dates ; which said land has been sold in due course of ad- 
§ 186. ministration, and has realized a sum sufficient for the payment in full of the first of 

said mortgages, the same being for the sum of $5,000; due to E. H Washburn, and 
§ 240. foi^ ^b® payment of one-half of the second mortgage, the same being for $4,000 and 
A 1^28* due to Henry S. Austin ; and that the said mortgage claims have been duly present- 
to 135. ^ ^^^ approved and filed as established debts ; 

That after the payment of the said judgments and said first mortgage and the one 

half of the second mortgage, there will not be sufficient funds in the hands of said 
6 289. administrator to pay in ^11 debts of the 5th class, to wit : all other demands against 
1 240.' ^^o estate, which with the said unpaid half of said second mortgage and with said 

third mortgage, amount to the sum of $37,898 50, but that the said remaining assets 
§ 241. ^ro sufficient to pay a dividend of sixty-two and one-third per centum of said claims, 
i 243^ togetiier with the remaining expenses of administration. 

Now therefore, it is hereby ordered, adjudged and decreed, that the said account 
6 237. o^ <3*'i^ administrator be and the same is hereby fully and in all respects allowed 

and confirmed. 

i242. And it is further ordered, that after paying the remaining expenses of adminis- 
221.' tration, which consist of the commissions of said administrator, as estimated in his 
' 236. s^d account, the fees of the said auditor and the guaTd\a.n {id litem, which are here- 
235. by fixed at fifty dollars each, and the costs of court which have been asoertained 
242. And taxed at thirty-two dollars and fifty cents, the said administrator do pay the 
186. whole amount due on said first mortgage, and the one-half of the amount of said 
k 240. second mortgage, and upon the remaining debts, being the 5tfa class as above set 
9 241. forth, he pay the remaining funds in his hands, the same constituting a pro raia 
} 248. dividend of sixty-two and one-third per centum, upon the said claims respectivdy. 



APPENDIX. IXXXV 

Seetiont 

according to to their several amounts, as set forth in the said account, a full list of ^^]* 
which said debts and the respective sums to be paid thereon, is as follows : 

[Here follows a list of such debts and the dividends.] ( 243. 

And it is further ordered, adjudged and decreed, that upon the payment of the § 245. 
said several sums herein above ordered, and upon filing due and proper vouchers 
therefor in this court, that said administrator shall be entitled to a full and final § 279. 
order of discharge, and that his sureties shall thereuion and thenceforth be dis- 
charged ft-om all liability for the future acts of said administrator. 

Let the above order be entered. 

T. W. Fbsblok, Probate Judge. 

isro- les. 

PETinON FOR DISTRIBUTION TO HEIR BEFORE CLOSE OF ADMINIS- 
TRATION. (4 250.) 

In the Matter of the Estate ^ p^^,^^^ Court 

Alonzo HiU, Deceased. ) ^^ ^^^ ^'^^ *"^ ^^^^^ ^^ ^^ Francisco. 

To the Honorable Thomas W. Freelon, Judge of Probate, in and for the city and 
county of San Francisco. 

The petition of Washington Hill, a resident of Spencer, in the county of Worces- 
ter md Commonwealth of Massachusetts, shows to your Honor, that he, the said 
Washington Hill is the father and sole heir to the estate of the said Alonzo Hill, 
late of said city and county of San Francisco, who died intestate on the 23d day of 
May, 1857, and leaving no surviving wife and no issue. 

And your petitioner further shows, that Robert 0. Rogers, Esq., public adminis- 
trator of said C'ty and county, is the administrator of said estate, the total value 
whereof, as appears by the inventory and appraisement thereof, on file in said court, 
amounts to the sum of two thousand six hundred and eighty (2,680) dollars and 
seventy-five (76) cents, and that more than three terms of said probate court have 
passed since the issuing of letters of administration on said estate to the said admin- 
istrator, and that as your petitioner is informed and believes, there are no debts or 
claims outstanding against the said estate. 

Wherefore, your petitioner prays for an order of distribution of the said estate, 
and that all the property and funds belonging to the same, remaining in the hands 
of the said administrator after payment of the costs and expenses of administra- 
tion, may be given to the petitioner upon the execution and delivery to the said 
administrator of the indemnity bond in such cases by law required, and for such 
other and further order and relief in the premises as ma^ be just. And your peti- 
tioner will ever pray, etc. 

WABHiNOToir Hill. 

By his attorney in fact, Johh H- Bbsw^e. 
[Sworn to as in No. 36.] 

ORDER FOR HEARING ON SAME, AND NOTICE. (§ 251, 263.) 
In the Matter of the Estate^ ^^^^^^ ^^^^ ^^ ^^^ 

Alonzo HiU, deceased ) City and County of San Francisco. Order of notice. 

Upon reading and filing the petition of Washington Hill, praying for an order of 
distribution of his share of the estate of Alonzo Hill, deceased, it is hereby ordered, 
that notice be given according to law, to Robert C. Rogers, Esq., administrator of 
said estate, and to all persons interested in said estate, to be and appear in said 
probate court, at the city hall, m the city and county of San Francisco, on Monday, 
the 25th day of January, A. D., 1858, at eleven o'clock, A. M., of that day, or as 
soon thereafter as the matter can be heard, then and there to show cause, if any 
they have, why the prayer of said petition should not be granted, and an order of 
distribution of said estate as prayed for, should not be made. 

T. W. Freelon, County Judge. 

San Francisco, January 11th, 1858. 



IxXXvi APPENDIX. 

Sections 
Probate 
Act. 3SrO- 170- 

NOTICE OF HEARING, TO BE POSTED. (§ 251, 253.) 

State of California, ) t^ t>.^, * n -* 

City and County of San Francisco. ] ^ ^^""^^^ ^'''''^' 

Notice is hereby given, that Alonzo Hill, deceased, having filed in this court his 
petition, praying that his share of the estate of said deceased, of which estate 
Robert C. Rogers is administrator, be given to him upon his giving to said adminis- 
trator a bond of indemnity as provided by law ; the hearmg of the same has been 
fixed by said court for Monday, the 26th day of January, 1858, at eleven o'clock, 
in the forenoon of said day of the January term of 1858, at the court room thereof 
at the city hall, in the city and county of San Francisco, and all persons interested 
in said estate are notified then and there to appear and show cause if any they 
have, why the said petition should not be granted. 

San Francisco, January 11th, 1858. 

William Dues, Clerk. 
[Proof of posting as in No. 17, anieJ] 



3SrO- 171- 
DECREE ALLOWING SUCH DISTRIBUTION. (§ 250 to 266.) 

In the Matter of the Estate ) j^ ^^^ ^^^^^^ ^ourt, 

Alonzo HiU, Deceased. ) ^^ *^*^ ^'^ *°^ ^^^^^ ""^ ^*^ Francisco. 



This cause having come on for a hearing on the twenty-fifth day of January, A- 
D., 1858, before the probate court of the city and county of San Francisco, upon 
the petition of Washington Hill, claiming to be the sole heir at law of the said 
Alonzo Hill, deceased, and praying that a distribution be made of the whole of the 
property and funds belonging to the said estate, remaining in the hands of the ad- 
ministrator thereon, after payment of the costs and expenses of administration, and 
that the same should be delivered over to him, the said sole heir at law, and the 
said hearing on the said matter, having on the said 25th day of January been con- 
tinued by the said court to the first day of February. A. D. 1858, and on the said 
first day of February, the said cause or matter having again come on for a hearing, 
and due proof to the satisfaction of the court having then been made of the service 
on the administrator, and posting of the notice in such cases required, according to 
law, commanding all persons interested in the said estate to be and appear in the 
said probate court on the said 25th day of January, then and there to show cause, 
if any they had, why the prayer of said petition should not be granted, and such 
distribution as prayed for, should not be made ; and it appearing to the court that 
more than three terms of the said court have elapsed since the issuance of letters 
of administration on said estate, and before the making of the said application, 
and that upon the proof, the said petitioner, Washington Hill, is the sole heir at law 
of the said decedent, and that there are few or no debts due from the said estate, 
and that good cause exists for granting the prayer of the said petitioner, and no 
objection thereto having been made : Now, then it is hereby ordered, adjudged and 
decreed, that distribution of said estate be made, and that Robert C. Rogers, Esq., 
the administrator thereon, do transfer, set over and deliver unto the said Washing- 
ton Hill, all the property and funds belonging to the said estate, remaining in his 
hands, or under his control, after payment of the costs and expenses of administra- 
tion on said estate, upon the execution and delivery to him of a bond of indemnity 
in the penal sum of eighteen hundred dollars, with two sufficient sureties to be ap- 
proved by the judge of this court of probate, conditioned, that the said Washington 
Hill, shall, and will, whenever required, imy anj" debt or debts, which may be found 
legally due to any person or persons, from the said estate. 

Given in open court, at a regular term thereof, this first day of February, A. D., 
1858. 

T. W. Fbeelon, County Judge. 



APPENDIX. Ixxxvii 

Sectioni 
. ITO- 17J3- Probate 

PETITION FOR DISTRIBUTION. 



In the Matter of the last Will and Testament 1 In the Probate Court 

of > of the County of San Francis 

Henry A. Harrison, Deceased. ) State of California. 



To the Honorable the Probate Court of the City and County of San Francisco. 

Your petitioner, William T. Hoffman, executor of the last will and testament of 
Henry A. Harrison, deceased, respectfully represents to this Honorable Court, that 
he has fully administered upon said estate and rendered his account of his adminis- 
tration, which has been duly audited, and the report of the auditor to whom the 
same was, has been this day duly confirmed by the order of this court. 

You petitioner further shows that it appears from said account and the auditor's 
report thereon, that there remains a surplus of said estate after paying the debts 
duly proved and all6wed against said estate with the expenses of administration, 
the following real and personal estate, to wit : one lot on Sansome street, twenty- 
eight feet front by one hundred and thirty-seven feet six inches in depth, westerly, 
with a wooden ware-house thereon, valued by the appraisers upon said estate at the 
sum of four thousand seven hundred dollars. ($4,7()0.) 

The cottage situate on Broadway street, and a lot upon which the same was 
erected, being thirty-four feet four inches and a quarter in front, on Broadway street 
by a depth of one hundred and thirty-seven feet six inches in depth, northerly, val- 
ued by the appraisers at the sum of two thousand and five hundred dollars, (2,500) 
which two several parcels of property are particularly set forth and described on 
the inventory (on file in this court) by metes and bounds. 

That there remains also seventy-eight shares of the stock of the Pacific Wharf 
Company, particularly described in said inventory, and valued by the appraisers 
on said estate at the sum of thirty-five hundred and ten dollars. (3,510.) 

Your petitioner further shows that he has paid all the debts of said estate which 
have been presented and allowed, and approved by this court, and that he has also 
paid the expenses of the administration of said estate as will appear by his said 
account and the auditor's report thereon, now on file in this court, and that he has 
also paid to Elizabeth 8. Harrison, the widow of the deceased, the sum of 

towards the allowance granted by the order of this court for 
the support and maintenance of herself and children, during the administration 
upon said estate, and that there remains due to her under said allowance at this 
date, the further sum of for the payment of 

which, your petitioner has no funds of said estate, except the real and personal 
estate of said ueceased herein before described. 

Your petitioner therefore prays, that an order may be made in the matter of the 
last will and testament of the said Henry A. Harrison, requiring all persons inter- 
ested in said estate to be and appear before this honorable court upon a day therein 
to be set and limited, and show cause, if any they have, why an order of distribu- 
tion should not be made of the residue of the estate between the widow and minor 
children of the deceased in accordance with the provisions of the will, to wit : one 
half to the widow of said deceased. Elizabeth S. Harrison, and the other half, equally 
between Henry A. Harrison and DeWitt Washington Harrison, minor children of 
said deceased ; and that such order may be made in reference to the unpaid bal- 
ance of the allowance to the widow as this court may deem just and right ; that 
your petitioner, his final account being settled, may be released and discharged from 
all further responsibility in the premises, and that such other or further order may 
he made therein as to the court, shall seem meet. 

Wm. T. Hoffman. 
[Sworn to as in No. 35.] 



3SrO- 173- 
ORDER OF PUBLICATION ON SAME WITH PROOF OF PUBLICATION. 
In the Matter of the Estate 1 j^ p^^^^^^ ^^^^^^ 

Henry A. Harrison Dec'd.) ^'^^ ^°^ ^^""*^ ^^ ^^ Francisco. 



On reading and filing the petition of William T. Hofi^nan, executor of the last will 
and testament of Henry A. Harrison, deceased, setting forth that he has filed his 



y 



btXXViii AfPBNDIX. 

Seettona 

'"'^^^ final account of his administration npon said estate in this court, and that the same 
has been duly audited, allowed and confirmed ; and that all the debts and expenses 
of administration have been Ailly paid ; and that a portion of said estate remains 
to be divided among the devisees, praying among other things for an order of dis- 
tribution of the residue of said estate among the said devisees, in pursuance of the 
terms of the will. 

It is ordered, that all persons interested in the estate of the said Henry A. Harri- 
son, deceased, be and appear before the probate court of the city and county of 
San Francisco, at the court room of said court, in the city hall, in the city and 
county of San Francisco, on the 191h day of April, A. B., 1858, at eleven o'clock, 
in the forenoon of that day, then and there to show cause why an order of distri- 
bution should not be made of the residue of said estate among the heirs and devi- 
sees of the said Henry A. Harrison, deceased, in pursuance of the provisions of the 
will. 

It is farther ordered, that a copy of this order be published for four successive 
weeks before the said nineteenth day of April, 1858, in the " Daily Evening Bulle- 
tin/' a newspaper printed and published in the city and county of San Francisco. 

T. W. Frbrloit, County Judge. 
(Indorsed :) Filed March 15th, 1858. 
D. P. Belknap, Deputy Clerk. 

State of California, City and County of San Francisco, m. 

C. 0. Oerberding, of the said county, duly sworn, deposes and says, that he is 
one of the proprietors of the *' Daily Evening Bulletin," a newspaper published 
daily in said county, and has charge of all the advertisements in said newspaper, 
and that the notice in the matter of the last will and testament of Henry A. Harri- 
son, deceased, hereto attached, has been published in the daily Evening Bulletin, 
from March 17th, 1858, to April 18, 1858, and farther sayeth not 

C. 0. Qbbbbbdiho. 
Sworn to this 19th day of April, 1858, before me. 
C. J. Bbbvhau, Notary Public. 



OBDER OF BISTRIBUTION. 

^"^^l^f^tX of San Franci-co. } ^ «"• P~«>-*« «<»'"*• 
Present : The Honorable M. C. Blake, Probate Judge. 

In ^e Matter of the last Will and Testament) 

of [ 

Henry A. Harrison, Deceased. j 

Whereas William T. Hoflffaian, Esq., executor of the l«st will and testament iA 
Henry A. Harrison, deceased, on the 15tfa day of March, A. D. 1858, filed his peti*^ 
tion in this court setting forth that he had filed his final account of his admlnistra- 
tion upon said estate in this court and that the same had been duly audited, allowed 
and confirmed ; and that all the debts and expenses of the administration had been 
fdlly paid, and that a portion of his said estate remained to be divided among the 
heirs and devisees of said estate, and praying among other things for an order of 
distribution of the residue of said estate among the said devisees ia purauaiioe of 
the terms of the will. 

It was ordered by this court that all persons interested in the estate of the said 
Henry A. Harrison deceased, be and appear before the probate court of the city any 
county of San Francisco, at the court room of said court in the City Hall of the said 
city and county of San Francisco, on the 19th day of April, A. D. 1858, at eleven 
o'clock in the forenoon of that day, to show cause why an order of distribution 
should not be made of the residue of said estate among the heirs and devisees of 
the said Henry A. Harrison deceased, in pursuance of the provisions of the will ; 

And it was further ordered by this court, that a copy of the said order be pub- 
lished for four successive weeks before the said 18th day of April, A. D. 1858, in the 
Daily Evening Bulletin, a newspaper printed and published in the city and county 
of San Francisco ; 



APPENDIX. Ixxxix 

Sections 

And now on this 18th day of April) A. D. 1868, due legal proof having been made Probate 
to the satisfaction of this court of the publication of said order and notice in due and ^^ 
legal form; £. W. Taylor, Esq., the guardian ad litems heretofore appointed by this 
court to appear for and represent and protect the interests of the absent minor heirs 
and devisees of said estate, appearing on their behalf; 

And it appearing from said final account and the auditor's report and order of 
confirmation thereon that there remains due to the widow of the deceased, Elizabeth 
8. Harrison, the sum of nine hundred and sixty-one d5 100 ($961 96) dollars of the 
amount allowed under the order of this court, for the support of herself and family 
pendmg the administration, for the payment of which the executor has no funds lett 
in his ^nds and which is a lien and claim against the said residue of said estate • 

That after paying the expenses incurred since the settlement of his final account 
there remains in said estate to be distributed a balance of money amounting to the 
sum of filty-nine 28-100 ($59 28) dollars ; 

Also seventy-eight (78) shares of the capital stock (^ the Pacific Wharf Company, 
valued in the inventory at three thousand five hundred and ten ($3,610) dollars ; 

Also the dwelling house and lot described in the inventory. 

[Here follows description of the property.] 

Appraised at the sum of twenty-five hundred dollars. 

And also that certain wooden store and lot situate on the westerly side of San- 
some street, commencing, etc 

[Here follows description of property.] 

Appraised at the sum of four thousand seven hundred dollars. • 

On motion of R. H. Waller, of counsel for the said executor ; the said E. W. Tay- 
lor, Esq., guardian ad litem, ot the said minor heirs and devisees being present and 
consenting thereto. It is ordered, ac^udged and decreed, and this court, by virtue 
of the power and authority therein vested doth order, ac^udge and decree, that the 
ODo equal undivided half of the said residue of the real and personal estate herein 
above described, be, and the same hereby is assigned, and set over to the said 
Elizabeth S. Harrison, widow of the said Henry A. Harrison, and one equal undi- 
vided quarter of the said residue of the said real and personid estate be, and the 
same hereby is assigned and set over to each of the said minor heirs and devisees of 
the said Henry A. Harrison, to wit : 

Henry Augustus Harrison and DeWitt Walsh Harrison ; to have and to hold unto 
them respectively, and to their respective heirs and assigns forever, conformably to 
the provisions of said last will and testament of the deceased, subject however to* 
the payment of the said sum of nine hundred and sixty-one 96 one hundredth dol- 
lars, due, and unpaid on said allowance ; and that the said Elizabeth S. Harrison, 
the guardian of the said Henry Augustus Harrison and DeWitt Walsh Harrison, ap- 
pointed by the said testator in and by his said last will and testament, have the cus- 
tody of the persons of the said Henry Augustus Harrison and DeWitt Walsh Harri- 
son, and of their share or interest in their said estate for the benefit of her said 
children. 

And it is further ordered, that the said William T. Hofihian, executor as afore- 
said, pay over and deliver to the said Elizabeth S. Harrison or to her attorney', the 
said sum of fifty-nine dollars and twenty-three cents, and the said, seventy-eight 
shares of the Capital Stock of the Pacific Wharf Company, together with the title 
deeds and papers remaining in his possession belonging to the said, estate, and thai 
upon such payment and delivery, and upon the production b^ said ejcecutor of a 
receipt therefor from the said Elizabeth S. Harrison, or fh>m.hef attorney, remitting 
the balance of said allowance, and ior the payment of all her claims and demands 
against the said William T. Hofltoian, as such executor, that then the said adminis- 
tration be closed, and the said executor be discharged ftom his executorship and 
from all further responsibility as executor of said estate. 

M. C. Blakb, 
County Judge, and €X qjficio, Probate Judge. 

San Francisco, April 19th, 1868. 



XC APPENDIX. 

Sections 

rrobftta 2^Q_ 175^ 

Act. 

DECREE OP DISTRIBUTION, WITH ORDER OF CONTRIBUTION BY DE- 
VISEES AND LEGATEES. (§ 181, 268.; 

In the Matter of the Estate } 

of > At a Term of the Probate Court, held, etc., etc. 

A. B., Deceased. y 

[For preliminaries see preceding Form and Form No. 176, and conclude as fol- 
lows :] 

And it farther appearing to this court that after the settlement and allowance of 
the account of said executor there remains in his hands the sum of three thousand 
dollars, and there also remains the real estate hereinafter described, subject to dis- 
tribution, 

And it further appearing that by the will of said deceased all his personal estate 
is bequeathed to C. D., £. F. and G. H., in equal portions, except as hereinafter 
stated, 
§ 181. And it farther appearing to this court that under and by the provisions of the said 
will the dwelling house of the deceased, with the lot of land upon which the same is 
situated, and the furniture therein were devised and bequeathed to C. D.. and that 
in the course of administration it became necessary to sell said house and lot and 
said Aimiture to pay the debts of said deceased, and that such property was duly 
sold and the sale confirmed by the order of this court, and said property being as- 
certained by such sale to be of the value of ten thousand dollars, 

And it further appearing that all the remaining property of said estate that has 
not been appropriated to the payment of debts and the expenses of administration 
has been devised and bequeathed to E F. and G. H.. and is worth, as appears by 
the report of H. J. Labatt, referee, duly filed herein and confirmed, the siun of 
|50,00<), 

And it ftirther appearing, that the said property so devised and bequeathed to 
said E. F. and G. H., consists of a certain tract of land m the county of Tehama, 
State of California, known as the rancho " WHly," and described as follows : [de- 
scription] of the value of $40,000, and the cattle thereon valued at $10,000 and is 
taken by them jointly and in common, and said £. F. and G. U., nor either of them 
§ 272. having made any request to have such property divided, 

And it further appearing to to this court that said E. F. does not reside in this 

§ 274. state and has no agent therein, and that it is necessary that some person should be 

authorized to take possession and charge of the same, for the benefit of said E. F., 

Now therefore it is hereby ordered, ai^udged and decreed, that distribution of 
i 268. gaid estate be now made as follows: 

1. That said sum of three thousand dollars be distributed equally between said C 

D., E. F. and G. H., and that said executor pay to each the sum of one thou- 
sand dollars. 

2. That said E. F. and G. H., being equally interested in the only remaining estate 

undisposed of, which is of the value of $60,000, and the property devised and 
bequeathed to said C. D. having been necessarily sold for the payment of the debts 
and expenses of the estate, make contribution according to their respective in- 
terests to the said C. D., which is one half ft*om each ; that the sum.to be con- 
§ 181. tributed to said C. D. is the sum of $8,333 33 1-0, which the said E. F. and G. 

H. are hereby decreed to pay to the sard C. D., one half each. 

8. That upon the payment of said sum by said E. F. and G. H. to said C. D., or in 
any other manner accounting to his satisfaction for the same, the said remain- 
ing portion of this estate, to wit, said rancho and the cattle thereon be distrib- 
uted to and be decreed to be the property and estate of said E. F. and G. H. 

( ty'A And it is further ordered that the said G. H. be appointed an agent to take pos- 
6 275' ^^si^^ ^^^ charge of said estate and property of said E. F., upon his giving a bond 
^ to the judge of probate of this county, in the sum of $6,000, to be approved by said 

judge, conditioned faithfully to manage and account for such estate, 

And it is further ordered, that upon filing m this court the proofs of performance 
by said executor and by said devisees E. F. and G. H., as hereinabove ordered, this 
i 279. decree shall take full effect and be declared to be completed and final, and said ex- 
ecutor shall be held to be discharged from further liability. 
[Dated, etc.] 

M. N., Probate Judge. 



APPENDIX. XCl 

Sectiona 
Probate 
ITO- 17S- Act. 

DECREE OP DISTRIBUTION. 

In the Matter of the Estate ^ In the Probate Court 

of r ^ ^^^ ^^^ ^^® County of San Francisco, 

George Perkins, Deceased. ) State of California. 

The administrator, Richard Perkins, having presented and filed on the 29th day 
of October, A. D., 1855, his final account and prayed for its settlement, and the said 
acconat, after due notice given, having come up for examination and settlement, 
and the same having been referred to Alexander CampbeU. Esq., to examine and 
report thereon, and the referee having reported, that the account should be allowed 
as presented, and the said report having been on the 26th day of November, A. D., 
1855, by an order of the court confirmed, and the said final account allowed and 
settled. 

And the said administrator having prayed that upon the settlement of his account, 
an order should be granted, pursuant to the statute, for all persons interested in the 
estate to appear and show cause why a distribution of said estate, without partition, 
should not be made to the heirs of said estate, and the said administrator having 
represented and the said referee having reported that the heirs and only heirs of 
said estate were the said Richard^ Perkins, administrator as aforesaid, and his bro- 
ther Abijah C. Perkins of Boston, in the Commonwealth of Massachusetts, and the 
said Richard Perkins having a full power of attorney from the said Abijah C. to 
represent him, the said Ab|jah, and in all matters connected with said estate to act 
for him as fully as he could do for himself if present, a copy of which power of 
attorney the said Richard has placed on file in this court. 

Ahd the court having on the 26th day of November, A. D. 1855, pursuant to said 
prayer of the administrator, ordered that all persons interested in the estate of 
George Perkins, deceased, late of Boston, in the Commonwealth of Massachusetts, 
and of China, be and appear in the city of San Francisco, at the court room, in the 
Oity Hall, of the Probate Court within and for the county of San Francisco, State of 
California, on the 3 J st day of December, A. D. 1855, at the opening of the court on 
that day, or as soon thereafter as counsel can be heard, to show cause if any they 
can why the estate of Qeorge Perkins should not be distributed without partition to 
his heirs, and to Richard Perkins and Abijah C. Perkins as such heirs ; and the court 
having further ordered that a notice be published in the DaUy Alta California, a 
daily newspaper of the city of San Francisco, for the space of four successive weeks, 
the last insertion being prior to the said 31st day of December, A. D. 1855, to all 
persons interested in the estate of Qeorge Perkins, deceased, late of Boston, Com- 
monwealth of Massachusetts, and of China, to be and appear in the city of San 
Francisco, in the court room, in the City Hall, of the Probate Court within and for 
the county of San Francisco, State of California, on the 31st day of December, A. D. 
1855, at the opening of the court on that day, or as soon thereafter as counsel can 
be heard, to show cause if any they have why the estate of George Perkins should 
not be distributed without partition to his heirs, and to Richard Perkins and Abi- 
jah G. Perkins according to the petition of Richard Perkins administrator, on file. 

Now on this 31st day of December, 1855. the administrator having filed a copy of 
the said notice ordered to be published, with the affidavit of the printer of the Daily 
Alta California thereto attached, that the same has been published daily in said 
paper for the space of at least four successive weeks, the first insertion being on the 
twenty- seventh day of November, A. D. 1855, and the last on the twenty-seventh 
day of December, A. D. 1855, and it being satisfactorily proven to the court that 
George Perkins, deceased, died leaving neither father, nor mother, nor wife, nor sis- 
ter, nor issue, nor children of a deceased sister, nor children of a deceased brother ; 
that he died leaving only two brothers, viz : Abijah C. Perkins, of Boston, in the 
Commonwealth of Massachusetts, and Richard Perkins (of said Boston) now at San 
Francisco in the State of California, and it being made to appear that the said Abijah 
C. and Richard are the heirs and the only heirs of the estate of said George Perkins, 
deceased ; and the said Richard Perkins appearing in court and for himself as well 
as for his brother Abijah C. agreeing thereto, and no one appearing in opposition, 

It is ordered, that the prayer of Richard Perkins administrator, for the uistribu- 
tion of the estate of George Perkins, without partition to the said Richard Perkins 
and Abijah Perkins be and the same is hereby granted ; 

And it is therefore adjudged and decreed that the said Abijah C. Perkins, of Bos- 
ton, in the Commonwealth of Massachusetts, and Richard Perkins (of the same 



XCU APPENDIX. 

Seetioiu 

^^^* place) now at San Francisco, State of Caltfornia, be and they hereby are seized of 
and entitled to the lands, tenements and hereditaments in the State of California, 
and the appurtenances thereof as tenants in common thereof, in fee simple, holding 
share and share alike, belonging to the estate of George Perkins, deceased, laie of 
said Boston and China, or to which hd had any right, title, or interest, whether the 
same may stand in the name of said Gteorge Perkins or in the name of the said ad- 
ministrator, or be held in the names of others in trust for the said George Perkins, 
or his estate, 

And it is further adjudged and decreed, that all moneys, all accounts, bills, prom- 
issory notes, and every evidence of indebtedness, together with all mortgages and 
securities of whatever nature, belonging to the estate of said George Perkins be and 
the same hereby are assigned, transferred, set over and delivered to said Abijah C. 
Perkins and Richard Perkins, in full ownership and property, share and share alike, 

Any suits now pending in the name of the administrator may be prosecuted in his 
name with his consent, but at the proper cost of said Abijah G. and Bichard. 

Dated San Francisco, this thirty-first day of December, A. D. 1855 

T. W. Feeelom, County Judge. 



ISrO- 177. 

PETITION FOR ORDER TO CONFIRM PARTITJON MADE BY AGREEMENT, 
AND TO DIRECT ADMINISTRATOR TO MAKE PARTITION DEED. 

''^C?4'^dC™iLVofSa„Franci.co.! m the Probate Court 

In the Matter of the Estate ) 

of '[ 

Patrice Dillon, Deceased. ) 

To the Honorable the Probate Court of the City and County of San Francisco : 

The petition of Francis Salmon, Michael Reese, Augustus J. Bewi^, Mary E. 
Gwin, and her husband William M. Gwin. Gustave Touchard. Honry Mathey, Edward 
J. Pringle, S. M. Mezes, C. D. Poston and Abram W. Thompson for and assignee of 
the interest of D. S. Gregory, sheweth : 

That heretofore, to wit : in the month of August, 1857, Patrice Dillon, the deceas- 
ed aforesaid, and your petitioners were the owners as tenants in common, as set 
forth in their agreement here ifter written, of a certain tract of land or rancho, in 
the county of Sonoma, hereinafter more particularly described, and the said Patrice 
Dillon acting by his attorneys Gustave Touchard and A. C. Whitcomb, thereunto 
duly authorized by power of attorney, a copy of which is hereto annexed and made 
part hereof, made and executed together with your petitioners a certain contract or 
agreement in writing in tbewords and figures following : 

Memorandum of an agreement entered into this day of August, 1857, be- 

tween Gustave Touchard, Francis Salmon, Michael Reese, Aug. J. Bowie, Mary E. 
Gwin, 'Henry Mathey, Patrice Dillon, Edward J. Pringle, S. M Mezes, C. D. Poston 
and D. S. Gregory : 

Whereas, the aforesaid parties are, or claim to be the owners of the rancho situ- 
ated in the county of Sonoma and State of California, and known as the rancho 
'' Roblar de la Miseria," and described as follows : 

[Here follows description of property.] 

And whereas the aforesaid parties are or claim to be the owners as tenants in 
common of said ranch (except as hereinbefore excepted) in the proportions follow- 
ing, to wit : 

Gustave Touchard, four thirty-seconds, (4-32). 

Francis Salmon, eight thirty-seconds, (8 -32). 

Michael Reese, four thirty-seconds, (4-32). 

Aug. J. Bowie, four thirty-seconds, (4-32). 

Mary E. Gwin, four thirty-seconds, (4-32). 

Henry Mathey, one thirty -second, (l-32). 

Patrice Dillon. three thirty-seconds, (3-32). 

Edward J. Pringle, one thirty-second, (132). 

S. M. Mezes, one thirty- second, (1-32). 

C. D. Poston, one thirty-second, (1-32). 

D. S. Gregory, one thirty-second, (1-32). 



I 



APPENDIX. XCm 

Sections 

And whereas the said parties, tenants in common as aforesaid, desire to make an ^'^^^^ 
amicable partition of their said interest in said rancho, 

Now this asfreement witnesseth : 

Article 1. Abram W. Thompson, surveyor, is hereby appointed a commissioner to 
make partiti(Mi of said rancho, as follows : 

Art. 2. The exterior limits of the entire rancho are to be considered for the purposes 
of this partition, as already ascertained by the survey heretofore made by the 
Surveyor General of the United States and approved by him. 

'^rt. 3. The said A. W. Thompson shall take said survey as a guide and shall first 
separate from the main body of said rancho the half league herein before men- 
tioned and described. 

Art 4. He shall then run up the remainder (^ said ranch into sections, half sections 
and quarter sections, as is done by the surveyors of the Government of the 
United States. 

Art. 6. He shall then divide the said sections, half sections and quarter sections into 
thirty -two difi^rent lots), all of which shall be as nearly equal in value as may 
be and in which is to be considered quantity and quality of soil, hill and valley, 
proximity to embarcaderos, etc, etc. 

Art. 6. Said commissioner shall then make and number the said lots fVom one to 
thirty-two, on a map to be made by him for that purpose. 

Art 7. After the said allotment shall be made and marked as aforesaid, the said 
commissioner by a notice in writing to be served personally on the parties hereto 
or his or their attorney or attorneys in fact, shall require the parties hereto to 
appear before him at a given day and hour, and at a given place in the city of 
San Francisco, to be designated in said notice, for the purpose of making a final 
panition of said interest in said rancho. 

Art. 8. On the day and hour and at the place designated in said notice, provided all 
the parties hereto or their attorneys in fact shall have had at least five days 
written notice as aforesaid, the said commissioner shall proceed to make the 
said partition as follows : he shall number thirty -two pieces of paper from one 
(1) to thirty-two (32) inclusive, fold them so that the numbers cannot be seen 
and put them in a hat. The parties hereto in the order in which their names . 
are set forth in this agreement shall then take each from said hat one, two, 
three, four or more of said pieces of paper containing said numbers according 
as he shall be entitled to one, two, three, four or more, thirty-seconds. The-said 
commissioner shall then put into a hat, other thirty-two pieces of paper, to be 
numbered from one (1) to thirty-two (82) inclusive, and to be folded as afore- 
said, which shall then be drawn fVom the hat by the parties hereto or his or 
their attorney or attorneys in fact, as the case niay be, in the order which shall 
be ascertained by the first drawing. 

Art. 9. The parties hereto shall be entitled to the lot or lots, as the case may be, on 
the map, the number or numbers of which shall correspond with the like num- 
ber or numbers which shall be last drawn by each respectively. 

Art. 10. As soon as the said drawing shall be made as aforesaid, the said commis- 
sioner shall set forth in a report to be by him attached to the said map, and to 
be made a part thereof, of the result of said drawing, which said report is to be 
signed and dated by him the said commissioner. 

Art 11. The parties hereto bind themselves immediately thereafter in person or by 
attorney to efiectuate fully the said partition, by executmg to each other the 
necessary deeds and releases. 

Art. 12. The costs of this partition are to be paid by the parties hereto, in propor- 
tion to their interest, and it is hereby further agreed that the same shall be paid 
at th« time of said partition, and if any one shall be in default the said commis- 
sioner is to look for payment to the defaulting party and not to the other par- 
ties hereto. 

[Signed by the parties.] 

Whereby and by means whereof the said Patrice Billon became and was bound to 
your petitioners to make and sufier to be made partition of the said rancho according 
to the terms of said agreement, and to join with your petitioners in making convey- 
ance of the several lots or portions thereof in severalty, according to the partition to 
be made as aforesaid between the said parties ; And your petitioners further allege 
that the said Abram W. Thompson entered upon said rancho and made survey 



XCIV APPENDIX. 

Act. thereof and divided the same into sections and qnarter sections and into thirty-two 
different lots or portions, as in and by said agreement required, and marked and 
numbered the said lots, and presented to parties signing said agreement the map of 
his said survey and division, marked and numbered as by said agreement required, 
and the same was by the said parties examined and approved, a copy of which map 
is hereto annexed and made vart hereof; And the costs of said survey and division 
amounting to the sum of eight hundred dollars or thereabouts were paid by the 
said parties in proportion to their interest as aforesaid in said rancho ; And after- 
wards and before the drawing of the lots and the final partition of said rancho, to 
wit : on or about the twelfth day of October, A. D. 1867, the said Patrice Dillon died, 
That after the issuance of letters of administration herein to Gustave Touchard, the 
said Abram W. Thompson, commissioner in said agreement named proceeded to 
make the drawing and allotment specified by said agreement ; that due notice was 
given according to the terms of the said agreement to the said Gustave Touchard, 
administrator of the estate of said Dillon, and to your petitioners of the time and 
place of the said drawing and allotments, and on the fifteenth day of February, 
1858, in the presence of the said Touchard, administrator aforesaid, and of your 
petitioners, the said commissioner made partition of the said rancho in the manner 
and form set forth and prescribe I by the said agreement; And the several parties 
to the said agreement drew and became entitled to the subdivisions or allotments 
hereinafter set forth to each of them, viz : 

1 to numbers nineteen (19), twenty-three 
Augustus J. Bowie, > (23), sixteen (16), and twenty-eight 

) (28). 
Patrice Dillon, by the drawing of Gustave ) to numbers twelve (12), seventeen (17), 

Touchard, administrator, ) and four (4). 

Edward J. Pringle, to number thirty-two (32). 

C. D. Poston, to number eleven (11). 

6. M. Mezes, to number eighteen (18). 

Marv E Gwin I *^ numbers twenty-five (25), thirty-one 

Mary Ji. uwm, | ^3^^^ ^^^^^^ ^^^^^ ^^^ ^^^ ^^^ 

) to numbers twenty-four (24), twenty-two 
Francis Salmon, > (22). six (6), twenty-nine (29), nine (9), 

) two (2), eight (8), twenty-six (26). 

Michafll RePRfl I *^ °»Dabers seven (7), fourteen (14), thir- 

Micnael Keese, ^ ^^ ^^3^^ ^^^^ ^^^^^^ ^3^^ 

Gustave Touchard, I ^ JiT^'l T ^ V' f^^ ^^^' twenty-one 

v.uowi,Yc xvuoLiBiu, ^ ^21)^ and twenty (20). 

Abram Thompson for, and assignee of the ) . „„«.u«« *^„ /i a\ 
interests of D. 8. Gregory, ] ^ ^"'^^^'^ *^^ ^^^^' 

Henry Mathey, to number twenty-seven (27). 

As will appear by the certificate of the said commissioner hereto annexed, which 
said numbers are marked upon the map of the said commissioner and indicate the 
subdivisions or allotments to which the said parties are respectively entitled in seve- 
ralty, whereby and by means of the premises the several parties to the said agree- 
ment have become entitled to hold in severalty their respective portions of the 
said Rancho, and are held and bound to make conveyances by deed according to 
the partition aforesaid, so that each may hold in severalty the portion to which he 
is entitled free and clear of the claims of the other parties ; and your petitioners 
are ready and willing to join in a deed of partition as aforesaid, and are desirous 
that the said Touchard, administrator aforesaid, inay be authonzed and directed to 
join with them in a deed of partition to carr}* out the true meaning and effect of the 
above written agreement of the said Dillon. Wherefore, your petitioners pray that 
the said Gustave Touchard, administrator of the estate of the said Patrice Dillon, 
may be authorized and directed in consideration of the conveyance to him the said 
Touchard by your petitioners of all their estate and interest in subdivisions, num- 
bers twelve, (12) seventeen (17) and four (4), aforesaid of the said rancho, to exe- 
cute to your petitioners such deed of conveyance as shall release and convey to 
them respectively all his estate and interest, and all the estate of the said Dillon, 
at the time of his death, in and to the subdivisions to which they are respectively 
entitled as herein above set forth. And your petitioners will ever pray and soforth^ 

[Signed by the parties.] 

[Here follows copy of the power of attorney of Patrice Dillon to Gustave Tou- 
chard.] 



APPENDIX. XCV 

Soctioni 

In accordance with an article of agreement made and entered into by and ^'i^t*^ 
between the joint owners of the estate in Sonoma county, State of California, known 
as the " Rancho Roblar de la Miseria," bearing date August, 1857, I have this day- 
made the final drawing of the allotments or divisions thereof. The said joint own- 
ers having been duly notified, and being present in person or by proper representa- 
tions ; and all of the provisions of the said article of agreement fully and truly 
carried out. The result of this drawing I hereby certify to be as follows : the num- 
bers here set down being drawn in reference to the numbers of the allotments shown 
upon the map, and field notes of the survey made by me of the said estate for this 
purpose in September and October, 1857. 

Augustus J. Bowie, I ^.f" °T***°'iiJ®^ iT^"'^''' •*t'J^<. , 

* * ) " Sixteen [16] and twenty-eight, [28.] 

Qustave Touchard, as administrator of ) Nos. twelve, [12] seventeen, [17] and 

the estate of Patrice Dillon. ) four [4.] 

Edward J. Pringle, No. [32,] thirty-two 

C. D. Poston, No. [11,] eleven. 

S. M. Mezes, No. [18,] eighteen 

Mrs. Mary E. Gwin, I N?f ' Z^^^^^'nl^ ^^^^ f ''*?^T ^^^'^ 

^ ' ( " fifteen [16,] and five, [5.] 

1 Nos. twenty-four[ 24,] twenty-two, [22.] 

Francis Salmon, > " six [6.] twenty-nine, [29] nine, [9] 

) two [2,] eight [8,] twenty-six, [26.] 

Michael Reese. \ ^"f' t^J ^fif' W^T^""' ^ ^^^ '^^- 

) teen and thirty, [30.] 

G. Touchard, \ ^?- ^^!^ ^^l^^^ ^^^ twenty-one, [21] and 

' ) twenty, [20.] 

Abram W. Thompson, for and assignee o^) xta rim * n 

S^the?.'*'* "' ""■ ^" *^"'^"'^' ^'"'^5 ^"- '^"S-^^*". [27.] 
San Francisco, February 16th, 1858. 

A. W. Thompson, Surveyor and Commissioner. 



N'O- 173- 

PETITION FOR A DECREE OF PARTITION. (§ 263.) 
In the Matter of the Estate ^ p^^^^^^ ^^^^ 

Antonio HaH, Deceased. ] ^'*^ """^ ^°"°''' "^ ^"^ ^"«>«''"=°- 
To the Hon. the Probate Court of the' City and County of San Francisco. 

The petition of Oliver Hall, James Hall, and Noah Hall, respectfully showeth : 
that by the decree of distriDiition of this Hon. Court, made herein on the 25th day x 258, 
of January, 1858, the estate, real and personal of the said Antonio Hall, deceased, 
was assigned to your petitioners and others, heirs at law of said deceased, the pro- 
portion or parts of each, being named therein respectively, according to their seve- a 269. 
ral rights of inheritance, but that said estate so assigned is in common and nndivid- X 261 ] 
ed, and the respective shares of said heirs are not separated and distinguished; 
Wherefore, your petitioners pray that partition and distribution of said property so § 26? 
assigned as aforesaid may be made, and that the respective shares of your petition- 
ers and of each of them, and of such others of the heirs of said deceased as may 
desire, or of all of them, if the same be necessary, for the purposes of the applica- 
tion of these petitioners, may be separated and set off to them respectively, in the 
proportions and to the persons named in said decree as the heirs at law of said de- § 269, 
ceased, reference to which decree the same being on file in this court is made as a 
part of this petition ; and that a day may be appointed for hearing this application, 
and that notice thereof may be given to all persons interested in said estate residing } 268. 
in the State of California, or their guardians, and to agents, attorneys or guardians, 
if there be any in this state, of such interested persons as reside out of the State, 
and that this court will direct whether such notice shall be given personally or by 
publication, and that some discreet person may be appointed to act as agent in this 



XCvi APPENI>IX. 

SeetioBi 

matter for such of said interested parties as reside out of this state who have no ^*^** 
agents, attorney, or guardians in this state. And your petitioners will ever pray, etc a 270. 

Olivbr Hall, 
Jaubb Hall, and 
Noah Hall. 
By JoHK Battbblbb, their attorney. 



ISTO. 170- 

ORDER APPOINTING DAY OP HEARING AND DIRECTING NOTICE TO BE 

GIVEN. (263.) 

In the Matter of the Estate 1 j^ p^^^^^ ^^^^ 

Antonio Hall, Deceased. ) ^"^ *"^ ^^^"^^^ «^ ^^"^ Francisco. 

On reading and filing the petition of Oliver Hall and others, praying for a par- 
tition and distribution of the estate real and personal of said deceased to the re- 
spective parties entitled, 

It is ordered, that the hearing of said application be appointed for Monday, the 
eighth day of March, 1868, at 11 o'clock, A. M., of that day, at the court room of 
this court, at tbe City Hall, in the city and county of San Francisco, and that notice } 268. 
thereof be given personally to each of said parties named in said decree, as heirs of 
said deceased, or to their guardians who may reside in this State, if they can be 
found, or to the agents, attorneys, or guardians, if any there be in this State of such 
as reside out of the State, by serving them with a copy of this order at least ten 
days before the said day of hearing, and that notice be given to all such interested 
persons as cannot be personally served by publishing a copy of this order at least 
twice a week for four weeks successively next before said day appointed for the 
hearing of said application. 

T. W. Freelon, County Judge. 

San Francisco, February 1st, 1858. 



]^TO. 180. 
ORDER APPOINTING AGENT FOR PARTIES OUT OF THE STATE. (270.) 

Application having been made herein by Oliver Hall and others for a partition 
and distribution of the respective shares of the estate of said deceased to the heirs 
at law, and the hearing of said application having been appointed for tbe 8th day of 
February next, and notice of such bearing being ordered to be given to all parties 
interested, 

It is hereby ordered, that William B. Fleming be appointed to act as agent for { 270. 
such of said interested parties as may reside out of this Btate, in the matter of such 
partition and distribution. 

T. W. Preblon, County Judge. 

February 1st, 1868. 

NO- 181- 
APPOINTMENT OF COMMISSIONERS TO MAKE PARTITION. (^ 261.) 

In the Matter of the Estate ) j^ p^^^^^ ^^^^ 



T of the Estate ) 
of [ 

all, Deceased. ) 



Antonio Hail, Deceased. ) City and Connty of San Francisco. 

The application of Oliver Hall, James Hall and Noah Hall for a partition and dis- a 2^3^ 
tribution of the property of this estate, assigned to the heirs of said deceased, this ^ 
day, coming on to be heard, in accordance with the order of this court, duly made 
on the 1st day of February, 1868, and due notice of this application haying been j 263. 
given as directed by said order, and proof thereof to the satisfaction of this court 
being filed, and all the heirs of said deceased as named in the decree of the 26th 
day of January*, 1868, assigning said property, appearing either in person or by 
attorney, agent, or guardian, or by assignee, and assenting. 



APPENDIX. XCVU 

Sections 
It is hereby ordered, that the application be granted and that such partition and ^^^^ 
distribution be made, and Elijah Dewey. R. H Sinton and Henry Baker are hereby 
appointed commissioners for that purpose, and whose duty it shall be to make diy- 
ision of the real estate not only in the city and comity of San Francisco, but also, 
wherever situated within this state. 

T. W. Fbbslov, Probate Judge. 
San Francisco, March 8, 1868. 



WARRANT TO COMMISSIONERS ON PARTITION. ($ 261.) 

In the Matter of the Estate 1 In the Probate Court, 

Antonio Hall, Deceased. ) of the City and County of San Francisco. 



To Elijah Dewey, R. H. Sinton and Henry Baker, duly appointed commissioners in 
the above matter by the order of this court of this date. 

Tou are hereby authorized and directed to proceed without delay and make full 
and complete partition and distribution of the estate of Antonio Hall, deceased, 
among the heirs of said deceased, in accordance with the decree of distribution of 
this court made on the 25lh day of January, 1858, a duly authenticated copy where- i 259. 
of is annexed, and make report thereof to this court in writing, with all convenient § 271. 
speed ; and you are hereby notified, that William B. Fleming, of the city and coun- 
ty of San Francisco, has been appointed by this court to act as agent for any of the § 270. 
parties interested who may reside out of the state. 

And for information of advancements by the deceased to any of said heirs, as § 273. 
determined by this court, your attention is further called to the said decree of this 
court, of which a copy is attached hereto as a part of this warrant. 

Witness, the Hon. T. W. Freelon, Judge of the probate court of the city and 
[seal.] county of San Francisco, March 8tb, 1858. 

Attest : William Duer, Clerk, 

By John Hamma, Deputy. 

State of California, City and County of San Francisco : ss. 

We, Elijah Dewey, R. H. Sinton and Henry Baker, and each of us, do solemnly a 261. 
swear that we will faithfully discharge the duties of Commissioners to make parti- 
tion and distribution of the estate of Antonio Hall, deceased, according to the best 
of our knowledge and ability. 

Sworn before me, this 10th day of March, 1858. Elutah Dbwbt, 

W. Babtlett, Deputy Clerk. R. H. Sinton, 

Hbnrt Baker. 



3JTO- 183- 
REPORT OF COMMISSIONERS ON PARTITION. ($ 271.) 

In the Matter of the Estate ) j^ ^^ p^^^^^^ ^^^^ 

of 



I 



Antonio HaU, Deceased. J ^''^ »•"* ^""^^^ «>^ »»° Franctoco, 
To the Hon. the Probate Court of the City and County of San Francisco. 

The undersigned, duly appointed by this Hon. Court, Commissioners, to make par- { 261. 
tltion and distribution of the estate real and personal, of Antonio Hall, deceased, 
respectfully report. 

That they have performed services as such commissioners under the warrant issued 
to them by this court as follows : 

Before proceeding to make distribution, they caused full and accurate surveys to 
be made of mU the real estate belonging to the said estate of Antonio Hall, deceas- 
ed, as hereinafter stated, copies of which surveys, with the field notes, descriptions, 
and accompanying maps are annexed hereto, and made a part of this report. 

That they also examined and inspected all the personal estate which is the sub- 
ject of distribution, and they return annexed hereto as schedule A, a Ml and com- 
plete list of all said personal property. 

H 



XCViii APPENDIX. 

fieetiona 

^**J** That thereupon, due notice in writing was given bj- your commissioners, to all the 

X 2^70 parties in interest, or their proper and lawful agents, attorneys, guardians or repre- 

* sentatives, a copy of which notice, together with the proofs of service thereof, is also 

annexed hereto and filed herewith, notifying said parties that the commissioners 

would proceed at the time and place therein named to make partition and distriba- 

tion of said estate. 

That at the said time and place, your commissioners met and were attended by 
the said parties interested, to wit : the heirs of said deceased as named in said de- 
cree of this court of January 25th, as follows: Oliver Hall, James Hall, Noah Hall. 
i 264. I, Lawrence Pool, assignee of Henry L. Hall, Mary Hall, and Charles Hall, in 
person ; EUen L. Hall and Chauncey B. Hall, minors, by Oliver Hall, their duly ap- 
pointed guardian; Emma Hall Johnson, by R. C. Johnson, her husband; Thomas R. 
Blake and Samuel Blake, by Nathaniel S. Pettit. their attorney in fact ; Catharine 
0. Bates, and Andrew G. Bates^ by Chas. G. Bryant, their guardian ; Maria Thorp 
and Matilda H. Thorp, residing out of this state, by W. B. Fleming, Esq., duly ap- 
i 261. pointed by your Honorable Court as agent of such parties as reside out of this 

state. 

That your commissioners thereupon, and after a full hearing of all the parties in- 
terested, and after due consideration, and in view of their instructions as expressed 
in said warrant, and the said decree of your Honorable Court of January 25th, 1858, 
proceeded to make partition and distribution. 
That by the terms of said decree, it appears, that there are in all, fifteen heirs, 
§ 273. the descendants of said deceased, of whom nine stand in the first degree, and six in 
^ 819 the second. That one of said heirs, in the first degree, Charles Hall, has received 
to 328. advancements from the deceased in his lifetime, of personal estate, which have not 
been included in the administration, and amount to what would have been his dis- 
tributive share of the personal property of said estate at this time, and he is therefore 
excluded by said decree from receiving any further portion of said personal pro- 
perty upon this distribution ; that therefore, each of said eight heirs being of equal 
degree, are entitled to (l-Hth) one eleventh of said personal property, and the re- 
V S^* maining six heirs taking by right of representation, and being in equal degree, are 
entitled to (1-22) one twenty- second, each. 
That: your commissioners therefore divided and set off in the following manner 

TBB PEBSOVAL BBTA.TB. 

To Oliver Hall and James Hall, entitled to 1-lltb each, who agreed with 
& 265. themselves to take the same in common, a certain mill (describe it) 

with the lease thereof, etc. etc., valued at $10,000 

& 264. To Noah Hall and I. Lawrence Pool, assignee of Henry L. Hall, entitled 
to 1-llth each, the stock in trade of deceased at, etc., (describe it) 
valued at $10,000 

To Mary Hall and to Chauncey B. Hall and Ellen L. Hall, represented 
by Oliver Hall, their guardian, and Emma Hall Johnson, represented 
by R. C. Johnson, her husband, entitled to 1-llth each, the horses, 
cattle and other property, upon the rancho, etc. etc.. and certain min- 
ing claims (describe them) valued at $20,000 
To Thomas R. Blake and Samuel Blake, represented by their attorney 
in fact, N. 8. Pettit, entitled to 1-22 each, a certain schooner (describe) 
valued at $5,000 
To Catharine C. Bates and Andrew 0. Bates, represented by Charles G. 
Bryant, their guardian, entitled to 1-22 each, two certain mortgages 
(describe them) of $2,500 each, $5,000 
To Maria Thorp, residing out of this State and represented by W. B. 
Fleming^ agent, etc., entiUed to 1-22, certain state bonds (describe 
them) valued ajb $2,500 
To Matilda H. Thorp, residing out of this State and represented as the 
foret^oing, entitled to 1-22, certain county warrants (describe them) 
valued at $2,500 
Making in all, the sum of $55,000; that bemg the whole amount of the personal 
estate of said deceased, except the sum of $1,372 25, in cash, which the adminis- 
trators retain to meet the expenses of administration, subject to the order and di- 
rection of the court. 

BBAIi BSTATB. 

Tour commissioners would fiirther report in relation to the real estate. 

That a certain lot in the city of Marysville, described as follows : (description) 



APPENDIX. XCIX 

Sconons 

being of bttt litUe yala6, bnd not admitting, in the Judgment of your commissimi- ^^ 
en, of being fairly divided, or of being set off in whole to any of the said distriba- 
tees to make a fair proportion with the rest, they recommend that the same be sold, k 268. 
and that the cash proceeds be distributed among the said heirs in their rei^ctiye 
proportions. 

And yonr commissioners would further report, that the remainder of said real es- 
tate consists of 
Ist. A tract of agricultural land in the county of Colusi [describe it], being part of 

the rancho known by the name of Cassay. 
2d. A grazing or stock rancho, lying and bemg in the county of Monterey, contain- 
ing about two leagues of land. 
That said stock farm or rancho is unique and complete as a whole, being a small * na*T 
valley or hollow, having proper proportions of pasture land and sowing land, with > ^*' 
water, surrounded by hills, and not admitting of division without ii\jury to the same. 
That said first named tract of land, to wit, the Cassay rancho, was held in com- 
mon and undivided between said deceased and one John Bidwell, and in order to . a/>q 
effect the purposes of this commission your commissioners by agreement with said ' * 
John Bidwell made partition thereof, said Bidwell taking the northern half of the 
tract, and leaving the southern half as the property of this estate ; which said agree* 
ment, together with the survey maps, field notes, etc., are filed herewith, subject to 
the approval of this court. 

That the above matters being submitted to said parties, the said heirs and their 
representatives, and by them fully understood and considered, your commissioners 
proceed^ to make partition of said estate, and allotted and set off the same in man- 
ner and form following : 

1st. The said tract of land above described as a stock Of grazing fkrm, being in- 
capable of division without iivjury to the same, and being of greater value than the 
share of any one party, and the said Oliver Hall being the oldest male heir of those 
in the first degree, agreeing to accept the same and to pay to the other parties in- . ..^ 
terested their just proportion of the true value thereof, and the same being ascer- « *"* • 
tained to be of the value of $10,000, your commissioners agreed to assign the same 
to the said Oliver Hall, he paying or securing to be paid to the said interested par- 
ties the following amounts : 

To James Hall, Noah Hall, I. Pool, assignee of Henry L. Hall, Mary Hall, Chaun- 
cey B. Hall, Ellen L. Hall, Emma Hall Johnson and Charles Hall the sum of $800 
each, and to the remaining heirs the sum of $400 each, which your commissioners 
award to them as their just proportion, considered together with the partition of the 
tract of land in Colusi county, as hereinafter mentioned. 

2d. That said tract of land in Colusi county, so partitioned as aforesaid, by agree- 
ment with John Bidwell, and containing ten thousand five hundred and thirty-five 
acres was duly surveyed and divided into fourteen small tracts and designated re- 
spectively, A, B, C, D, E, F, G, H, I, K, L, M, N and 0, 

And your commissioners proceeded to allot and set off the same to said several 
parties as hereinafter mentioned. 

The whole value of said tract of land being estimated at $14,000, and the value of 
said grazing form in Monterey county $10,0^, would make a total of $24,000, 

Of this amount the share or proportion of each of the nine parties in the first de- 
gree would be $2,000, and of the remaining six $1,000 each. 

The said Monterey tract, at a valuation of $10,000, being taken by said Oliver 
Hall, leaves the sum of $8,000 in money to be paid by said Oliver Hall to the remain- 
ing parties, which as shown above, gives the sum of $800 to each party in the 1st 
degree, and $400 to each party in the 2d degree, and upon the division of the re- 
maining tract of land, each party of the first degree would be entitled to an amount 
of land equal in value to $1,200, and each party of the second degree to an amount 
equal to the sum of $600. 

Your conmiissioners therefore, in making said division of said fourteen smaller 
tracts, endeavored so to estimate and divide the same, with reference to location, } 26& 
quantity, quality and all other advantages and disadvantages, as to make eight div- 
isions of the value of $1,200 each, and six divisions of the value of $600 each. 

Tour commissioners proceeded therefore to make the allotment of said divisions 
indicated upon said map as above stated, by two separate drawings in the presence 
of said parties, one among those of the first degree, for the eight larger divisions, of 
the value of $1,200 each, and one among those of the second degree for the six 
smaller divisions, which resulted as follows : 

James Hall drew - - - - - - -D, 

Noah Hall " K. 

Etc., etc., -------- etc. 



C APPENDIX. 

Seotioiui 

j^et. -^d 7^^^ commissionera do accordinglj so apportion, allot and set off to the said 
} 265. several parties interested. 

Tour commissioners therefore report the foregoing summary of their proceedings, 
and respectftilly submit the same for the consideration of your Honor. 
San Francisco, June 7th, 1868. 

Elijah Dewbt, 

R. H. SlKTOV, 

Hbnbt Bakes, 

Commissioners. 



3JTO- 184- 
ORDER OF PINAL DISTRIBUTION. (§ 268.) 

In the Matter of the Estate^ 



of I 

Herman R. Haste, deceased. ) 



In Probate Court. 



State of California, City and County of San Francisco. 

On reading the report of John A. Lent, Robert C. Rogers, and Denis Lyons, Com- 
missioners appointed by the Probate Court of San Francisco county, to make divis- 
ion and distribution of the real and personal property of Herman R. Haste, deceas- 
ed, among the widow, and heirs of said deceased ; and it appeanng by the said re- 
port that the real estate of said deceased, cannot all, well be divided, and a sale 
of a part of the same is recommended. 

It is by the court ordered and decreed, that the one half interest of the estate of 
said deceased in the house and lot in Sacramento street, more particularly described 
hereinafter, and of which the said deceased was an owner in common, with one 
Daniel 8 Chapin, by conveyance from Henry G. Gordon and Arthur 0. Gay, dated 
August 30th, A. D. 1860, be, and the same is hereby set off and awarded to Mrs. 
Eliza Haste, widow of said Herman R. Haste, deceased, at the appraisement or 
valuation of the sum of two thousand five hundred dollars, for the said moiety or 
one half. The whole of said lot is situate, bounded and described as follows to wit : 

[Here follows description of property.] 

And also, it is further ordered and decreed, that John Haste, administrator, and 
Eliza Haste, administratrix of the estate of said Herman R. Haste, deceased, cause 
to be sold at public auction, for cash, to the highest bidder, the fifty vara lot 
No. 996, situate corner of Geary and Taylor streets, and also the fifty vara lot No. 
1263, situate comer of Hyde and Ellis streets, in the city of San Francisco, and that 
the proceeds of such sales, together with the sum of two thousand nine hundred 
and ten 33-100 dollars, money, shown by the report of said commissioners to be in 
the hands of the administrators and administratrix, shall, after paying the costs of 
such sale, the expenses of administration and fees of the commissioners, and all 
other necessary costs and charges, be divided between the said Eliza Haste, widow, 
and Herman R. Haste, Junior, and Julia J. Haste, minor children and heirs of Her- 
man R. Haste, deceased, in such a manner that the said Eliza Haste, widow, etc., 
shall receive a sum, that in connection with the appraised value of the interest in 
the house and lot in Sacramento street, will amount to one third of the whole estate, 
and the said Herman R. Haste, Junior, and Julie J. Haste, minors, be the sum of 
money, equal to two thirds of the whole estate of said deceased. 

T. W. Fbeelov, County Judge. 
Dated, September 28, 1864. 



3SrO. 186. 

ORDER OF SETTLEMENT OF ESTATE AND DISCHARGE OF EXECUTOR. 

(§ 279.) 

In the Matter of the last Will and Testament ) In the Probate Court of the 

of >• City and County of San Francisco, 

Elizabeth Sullivan, Deceased. ) State of California. 

An order having been made, to wit, on the twenty-ninth day of October, in the 
year of our Lord one thousand eight hundred and fifty-five, directing distribation 



APPENDIX. CI 

of the assets of the estate of Elizabeth Sullivan deceased, among the legatees and 
devisees named in the will of said deceased, and the persons entitled thereto, as 
shown by and set forth in said order ; and it being now at this day shown, that Eu- 
gene L. Sullivan, the executor of said last will and testament, has fully and faithfully 
discharged the dutie^ of his trust, and has filed proper and full vouchers with the 
clerk of this court, snowing a strict compliance with the terms of said order, and 
that he has distributed the whole of said estate then remaining in his hands, as 
thereby directed, and that no other assets have since come to his possession or know- 
ledge, belonging thereto. 

On motion of Messrs. Saunders & Hepburn, of counsel for said executor, 

It is by the court ordered, ai^udged and decreed, and the court does hereby order, 
adjudge and decree that the said Eugene L. Sullivan, executor of the said last will 
and testament, has fully and faithfully discharged the duties of his trust, as shown 
by his final accounts now on file, and has, as shown by the vouchers on file, fully 
complied with the order hereinbefore referred to, making distribution of said es- 
tate : and he the said Eugene L. Sullivan is hereby wholly and absolutely discharged 
from all further duties and responsibilities as such executor ) and the said estate 
declared fully distributed and the trust settled and closed. 

T. W. Fbeblon, County Judge. 
San Francisco, June 9th, 1866. 



SMtionfl. 



FORMS UNDER GUARDIAN ACT. 



PETITION FOR APPOINTMENT OF GUARDIAN. (§ 336 and 378.) 

To the Hon. Thomas W. Freelon, Probate Judge for the county of San Francisco. 

Tour petitioner, Montgomery Blair, respectfully represents, that Catharine A. 
Young, Mary A. Young and Albert Young, infant children of Alexander H. Young, 
and bis deceased wife, Serena Young, are entitled to certain real estate situate in 
the counties of San Francisco, Alameda and Santa Cruz, in the state of California, 
and that said infants are all under the age of fourteen years, and reside in the Dis- 
trictS)f Columbia, and are not now, and never were residents of the State of Cali- 
fornia. Your petitioner further states that the said Alexander H. Young, the father 
of said infants, also resides in the District of Columbia, and is jointly interested 
with his said children as tenant in common of the property aforesaid ; and has au- 
thorized your petitioner by letter of attorney, duly signed and delivered, to take 
such steps as may be necessary to protect the interests of his said children in the 
property aforesaid. Your petitioner further represents that in his opinion, it is im- 
portant to the interests of said infants that a guardian be appointed for them by this 
honorable court, to take charge of the said estate, and protect their rights in the 
same. Wherefore, as the friend of said infants, thereunto duly authorized by their 
father, your petitioner prays your honor to appoint a guardian for them and respect- 
fully suggests the name of Lloyd Tevis, as a fit and proper person for said trust. 

M. Blaib. 
[Sworn to, as m No. 85.] 



CU APPENDIX. 



PETITION FOB APPOIKTlfEirr OF GUABBIAN. (} S3e.) 

To tbe Hon. T. W. Freelon, Comity Judge, haring cluirge of the probftte bnsmeaB m 
the county of San Francisco : 

Your petitioner, Maria J. Slack, a resident of San FranciMX», respectfnny lepie- 
sents, tbat Kate Agnes KKne, is her daughter, aged four yean next July, and haa 
some property, consisting of a honse and lot in Sacramento city, worth aboat seTea 
hundred and fifty dollars, which needs some care and attention, which cannot be be- 
stowed without a legal guardianship. She therefore prays that she may be appoint- 
ed guardian of her said child, Kate Agnes Kline, and have care and contnd of the 
property and custody of her person. And as, etc. 

Mabia J. Slack. 

State of California, City and County of San Franclsoo. 

Maria J. Slack, being duly sworn says, that she has read the foregoing petition 
and knows the contents thereof, that the same is true of her own knowledge. 

Mabia J. Slack. 

Subscribed and sworn before me, this 20th of March, 1868. 
D. P. Bblkvap, Deputy County Clerk. 



3>TO. 188. 
ORDER APPOINTma GUARDIAN. (^ 336.) 
In the Matter of the Estate and Guardianship 1 j pp^i^i^te Court 

Kate Agnes Kline, minor. 



- * f m rroDBie uoun. 

i City and County of San Francisco. 



On reading and filing the petition, duly verified, of Maria J. Slack, praying to be 
appointed guardian of Kate Agnes Kline, a minor, on motion of D. Shattuck, 
Esq., attorney for the petitioner. 

It is ordered, that Maria J. Slack be and she is hereby appointed guardian of the 
person and estate of the said Kate Agnes Kline upon executing and filing a bond to 
the said minor in the sum of five hundred dollars^ conditioned according to law 
with sufficient sureties and approved by the Judge of this court 

T. W. Fbbelon, 
County Judge and ex-qficio Judge of the Probate Court 



LETTERS OF GUARDIANSHIP. 

**%oLty of "sin Francisco. ( ^"^ ^'^^^^^^ ^^^*' 

Maria J. Slack is hereby appointed guardian of the person and estate of Kate 
Agnes Klino, a minor. 

Witness, William Duer, Clerk of the Probate Court of the county of San 
[saAL.] Francisco, with the seal of said court affixed, this 23d day of March, 
A. D. 1858. 

By order of the Court : William Dueb, Clerk. 

State of California, City and County of San Francisco, ss. 

I do solemnly swear that I will support the Constitution of the United States and 
the Constitution of the State of California, that I will faithfully discharge the duties 
of guardian of the person and estate of Kate Agnes Kline, a minor, according to 
law. Mabia J. Slack. 

Sworn and subscribed to before me, this 28d day of March, A. D., 1868. 
D. P. Belknap, Deputy County Clerk. 



APPENDIX. cm 

GUARDIAN'S BOND. « 843, 76, 375.) 

Enow all men by these presents, that we, Maria J. Slack, William Vosbors^fa and 
8. A. Presbo, are held and firmly bound unto Kate Agnes Kline, a minor, in the sum 
of fire hmidred dollars, lawful money of the United States of America, to be paid to 
the said Kate Agnos Kline, minor, for which payment well and truly to be made, we 
bind ourselves, our executors administrators and assigns, jointly and severally and 
firmly by these presents. 

Sealed with our seals and dated this twenty-second day of March, 1858. 

The condition of the above obligation is such that, Whereas application has been 
made to the Judge of the Probate Court of the city and county of San Francisco, 
State of California, for the appoiutment of Maria J. Slack guardian of the person 
and estate of the said Kate Agnes Kline, 

Now therefore, if the said Maria J. Slack be appointed such guardian, and shall 
faithfully perform the duties of her trust according to law, and shall : 

Ist. Make a true inventory of all the estate, real and personal, of her said ward that 
shall come to her possession or knowledge; and shall return the same within 
such time as the said judge shall order. 

2d. Shall dispose of and manage all such estate according to law and for the best 
interest of said ward and faithfully discharge her trust in relation thereto ; and 
also in relation to the care, custody and education of said ward. 

8d. Shall render an account on oath of the property, estate and moneys of said ward 
in her hands ; and all proceeds or interest derived therefrom, and of the man- 
agement and disposition of the same within one year after her appointment, 
and at such other times as the court shall direct ; and 

4th. At the expiration of her trust shall settle her accounts .with the probate judge 
or with the said ward if she be of full age, or her legal representatives ; and 
shall pay over and deliver all the estate, moneys and efiects remaining in her 
hands, or due from her on such settlement to the person or persons who shall 
be lawfully entitled thereto. 

Then this obligation shall be void and of no efiTect, else to remain of full force and 
virtue. 

M. J. Slack, [Seal.] 

Sealed and delivered in the presence of) William Vosbubgh, [Seal.] 

D. P. Belknap. ) S. A. Pbbbho. [Seal] 

State of California, City and County of San Francisco, ss. 

William Vosburgh and S. A. Presho, being duly sworn each for himself says that 
he is a freeholder resident in said State, and is worth the said sum of five hundred 
dollars over and above all his just debts and liabilities, exclusive of property exempt 
from execution. 

William Vosbubgh, 
S. A. Pbbsho. 
Sworn to before me, this 22d day of March, 1858. 

D. P. Bblkbap, Deputy Clerk of the Probate Court. 






ORDER APPOINTING GUARDIAN. (J 336.) 



In the Matter of the Guardianship ] 

of I In the Probate Court 

John and George Martin, minor ^ of the County of San Francisco and 

children of Michael and Eliza- I State of California. 

deth Martin. 



I 



On reading the petition of John Francis Liberia, praying to be appointed guardian 
of the persons and estates of John Martin and George Martin, minors, under the age 
of fourteen years, children of Michael and Elizabeth Martin, both of whom are de- 
ceased ; it appearing to the court that the said minors have no relatives residing in 
this State, and that it is necessary for their support and protection of their property. 



CIV APPENDIX. 

StCtiOllfa 

that some suitable person shonlcLbe appointed to take charge of them, after due 
consideration, 

It is by the court ordered and decreed, that the petitioner, John Francis Liberia, 
be appointed guardian of the persons and estates of said minors, John and Qeorge 
Martin, on his filing an approved bond in the sum of one thousand dollars to each 
of said minors. 

T. W. Fbeelov, County Judge. 

San Francisco, May, 1856. 



ORDER APPOINTINa GUARDUN. (^ 886.) 

In the Matter of the Guardianship) 

of 
Shasta, an Indian girl, a minor. 



of > In Probate Court. 



On reading the petition of 0. M. Wozencraft, praying to be appointed guardian 
of the person and estate of an Indian girl called " Shasta," a minor, imder the age 
of fourteen years. 

It appearing to the court that said minor is an orphan, that the petitioner is a 
suitable person to be appointed guardian, 

It is ordered, that letters of guardianship of the person and estate of said minor, 
called " Shasta," be issued to the said applicant, Oliver M. Wozencraft, on his filing 
a bond in the sum of one hundred dollars. 

San Francisco, July 27th, 1867. 



lO'O. 193. 
ORDER FOR NOTICE TO MINOR TO NOMINATE GUARDIAN. (§ 837.) 

In the Matter of the last Will and Testament 1 

of > In Probate Court. 

John Cotter, deceased. ) 

It is ordered, that notice be given to Edward B. Cotter, a minor heir of John Cot- 
ter, deceased, now resident in the city of San Francisco, to appear in this court, on 
Moaday, the 29th day of June, A. D., 1857, at 11 o'clock, A. M., then and there to 
nominate a guardian of his person and estate, as prayed for by the executors of the 
last will and testament of John Cotter, deceased. 

San Francisco, May 25, 1857. 



N-O- 104. 
PETITION FOR APPOINTMENT OF GUARDIAN OF INSANE PERSON. ($ 847.) 

To the Hon. Thomas W. Freelon, County Judge and Judge of the Probate Court of 
the County of San Francisco. 

The petition of Mary Ann Denny, of the city of San Francisco, respectfully show- 
eth. 

That she is the sister of Mary Champlain, whose maiden name was Sarah Twist, 
and who is at present at the residence of Mrs. Eagle, near Pacific street, in the said 
city of San Francisco. 

That the said Sarah Champlain is the owner and possessed or entitled to the pos> 
session of certain property ; that she is insane and mentally incompetent to manage 
her property. 

Wherefore, your petitioner prays that such proceedings may be had and taken in 
the premises, as may be necessary for the appointment of a guardian of the person 
and estate of the said Sarah Champlain, and that such guardian be appointed. 

Mabt Ann Dehnt. 
[Sworn to as m No. 35.] 



APFBNDIX. CV 

X>TO. leo. 

ORDEB THAT INSANE PBBSON BE NOTIFIED AND BE PRODUCED BEFOBB 

PROBATE JUDGE. (§ 347.) 

In the Matter of the Insanity ) 

of [ 

Sarah Champlain. } 

On reading the foregoing petition, it is ordered, that the above matter come np 
for a hearing before me at the coontj court room, or at my chambers, in the city 
hall of the city of San Francisco, on the 27th day of October, A. D. 1856, at 11 
o'clock, A. M., of that day, and that notice be given to the said Sarah Champlain 
of the time and place of hearing the case, not less than Ave days before the time so 
appointed. 

And that the said Sarah Champlain, if able to attend, be produced before me on 
the hearing. 

T. W. Fbbelov, County Judge. 

San Francisco, October 22d, 1856. 



XTO. xae. 

ORDER APPOINTINO GUARDIAN OF AN INSANE PERSON. (( 848.) 

In the Matter of the Guardianship } 

of > Probate Court of said co^nij, 

Morris Saze, charged with insanity. ) 

State of California, City and County of San Francisco, $$. 

Having heretofore, upon the petition of Charles Bain, representing that the a,bove 
named Morris Saxe, is insane and mentally incompetent to manage his property, 
and praying for the appointment of a guardian of the person and estate of the said 
Morris Saxe, caused a notice to be given to the said Morris Saxe of the time and 
place of hearing the case, not less than five days before the time so appointed ; and 
on reading and filing proof of due personal service of said notice upon said Morris 
Saxe. After a full hearing and examination upon such petition, it appearing to the 
probate judge that the said Morris Saxe, is insane and incapable of taking care of 
himself and managing his property, It is ordered, that James R. Jones of said city 
and county, who is hereby required to execute to the said Morris Saxe, a bond, 
according to the statute in sjoch case niAde and provided, with sufficient sureties, to 
be approved by said probate judge, in the sum of sixteen hundred dollars, be, and 
he is hereby appointed guardian of the person and estate of Morris Saxe, above 
named, upon giving such bond. 

T. W. Fbbblon, County Judge. 

Dated, San Francisco, January 5th, A. D., 1657. 



3>TO- 197, 

PETITION FOR ORDER OF SALE OF REAL ESTATE BY GUARDIAN. (§ 355 

to 868.) 

In the Matter of the Estate and Guardianship | j^ ^^^ p^^^^^ ^^^^^ 

Alonzo Fidd, a minor. [ City ami County of San Franeiseo. 

The petition of Thomas Cole, Junior, guardian of the above named minior, re- 
spectfully showeth to this court, 

That the estate of said minor, consists almost wholly of real estate, the most of 
which is unproductive, and yields little or no income for the maintenance and edu* ^ 359^ 
cation of said minor, f 255.* 

That said real estate consists, etc. etc., 

[Here follows description of property.] 

And by selling the same, a sufficient sum could be realized to make an investment 
that would furnish a suAeient income for the purposes above mentioned* 

N 



OVl 



APPENDIX. 



Seetiou 

That said minor has no other means of maintenance and education, and it becomes 
necessary therefor to make a sale of some part of said real estate. 

Tour petitioner would further represent that said land being wholly unproductive, 
i 256. 1^ would be greatly for the benefit of said minor if the whole were sold, and the 
proceeds, after providing for the wants of the minor as above stated, be invested in 
some safe securities from which an accruing interest and profit could be derived. 
§ 360. Wherefore, your petitioner prays, that an order may be made, directed to the 
next of kin of the said minor, apd to persons interested in the estate, to be and ap- 
pear before this court, at suoh time as the court may appoint, to show cause why 
an order should not be granted for the sale of said real estate ; and that upon such 
6 859. hearing, this Hon. Court may order said land or such part thereof as may he for the 
best interest of said minor, be sold for the purposes above mentioned. 
And your petitioner will ever pray, etc. 

Thomas Cole, Jr. 
6 359. [Sworn to as in No. 85.] 



ORDER TO SHOW CAUSE AND TO MAKE PUBLICATION. (§ 860, 361.) 

[Title of Estate and Court as in the foregoing] 

On reading and filing the petition of Thomas Cole, Jr., praying for a sale of real 
estate, and it appearing therefrom, that a sale of the whole or of some portion of 
the real estate of said minor would be for his benefit, and is necessary. 

It is hereby ordered, that the next of kin of said minor, and all persons interested 
in said estate appear before this court, at the court room thereof, at the city hall, 
in the city and county of San Francisco, on Monday, the 7th day of June, 1858, at 
} 860. 11 o'clock, A. M., then and there to show cause why an order should not be granted 
for the sale of such real estate, and let a copy of this order be published twice a 
week for three weeks successively, before the said day appointed, in the *' Daily San 
{ 861. Francisco Times," a newspaper printed anu published in said city and county of 
San Francisco. 

M. 0. Blakb, Probate Judge. 
May 3d, 1858. 



ISTO. 100. 
ORDER OF SALE OF REAL ESTATE. (§ 365.) 



In the Matter of the Estate 

and Ouardianship 

of 

Henry L. Moore and Maria Moore, minors. ^ 



Probate Court 
City and County of San Francisco. 



Bei^amin Bewster, guardian of the above named minors, having heretofore present- 
ed to the Probate Court of the city and county of San Francisco, his petition for author- 
ity to sell the real estate in the State of California in which said minors are inter- 
ested, for the immediate relief of said minors, they being in poor and needy circum- 
stances and without the means of maintenance and education, and said real estate 
being in litigation ; And the said probate court having upon such petition made an 
order directing the next of kin of said minors and all persons interested in said es- 
tate, to appear before said probate court, at the court room thereof at the City Hall 
in the city and county of San Francisco, on Monday, the 21st day of Jmie, 1858, at 
11 o'clock, A. M., then and there to show cause why an order should not be granted 
for the sale of said real estate; Now on this 21st day of June, 1858, on reading and 
filing satisfactory proof by affidavit, of the publication of said order, and the said 
guardian. Benjamin Brewster, having appeared by his attorney, E. D. Sawyer, and 
the proper proceedings having been thereupon had (no one appearing to oppose the 
application) and the probate court upon due examination being satisfied after a full 
hearing upon the said petition, that a sale of the whole of the property mentioned 
in the said petition is necessary to be made for the maintenance and support of said 
minors. 

It is ordered by the court, that the said Bei\jamin Brewster, guardian as afore* 



APPENDIX. 



CVU 



Sectioiu 



said, do sell the ri^ht, title and interest of said minors of, in and to the following 
described real estate, for the support and maintenance of said minors, that is to say : 

[Here follows description of property.] 

And it is farther ordered, that the said sale be made at public auction, according 
to law, and that it be made for cash, and that the said guardian do make return of 
said sale to this court, according to law. 

M. C. Blake, Probate Judge. 



KTO- dOO. 
ORDER ALLOWING GUARDIAN'S ACCOUNT. (§ 870, 382.) 



In the Matter of the Estate 
and Guardianship 
of 
Mary Evelina Brunell, an infant, , 



In the Probate Court 
of the County of San Francisco. 



On reading and filing the account of Orson A. Reynolds, guardian of Mary Evelina 
Brunell, an infant, filed in this court the twenty-third day of October, A. D. eighteen 
hundred and fifty six ; and also on filing the vouchers appertaining thereto ; and also 
on filing the notice required by law to be given of the settlement of said account 
with due proof of publication or posting as required by law ; and the matter of said 
accounting coming on to be heard on the third day of October, A. D. eighteen hun- 
dred and fifty-six, and no one appearing to oppose ; and the said account and vouch- 
ers having been duly examined by this court and found to be correct, and reason- 
able for the interests of said infant ; 

And on motion of Messrs. Jones, Doyle, Barber & Boyd, of counsel for said 
guardian, 

It is ordered that the said account of the said Orson A. Reynolds, giiardian of 
the said infant, be and the same is hereby passed, approved and allowed, as ten- 
dered by him ; 

And it is hereby further ordered that the said guardian be allowed the commis- 
sions charged by him in said account, as and for his compensation. 



Dated San Francisco, November 10th, 1858. 



T. W. Fbbblozt, Probate Judge. 



a^To. SOI. 

BOND BY GUARDIAN ON THE SALE OP REAL ESTATE. (§ 366, 375, 73, 76.) 

Know all men by these presents, that we, Charles Lumbard, principal, and William 
A. Yates and Thomas Cole, Jr., sureties, are held and firmly bound to the Probate 
Judge of the city and county of San Francisco, in the sum of five thousand dollars, 
lawful money of the United States of America, for the payment whereof well and 
truly to be made, we bind ourselves, our heirs, executors, administrators or assigns, 
jointly and severally, firmly by these presents. 

Sealed with our seals, and dated this 30th day of June, 1858. 

The condition of the above obligation is such, that whereas an order has been made 
by the Probate Court of the city and county of San Francisco, authorizing the above 
named principal, as guardian of the person and estate of Sarah Morey, a minor, to 
sell certain real estate, the property of said minor, and bond in the sum above named 
has been ordered. 

Now therefore, if the said Charles Lumbard, as such guardian, shall sell the said 
real estate in the manner prescribed by law for sales of real estate by executors and 
administrators, and shall account for and dispose of the proceeds of the sale or sales 
thereof in the manner provided by law, then this obligation to be void, otherwise to 
remain in full force and effect. 

Charles Lumbard, [Seal.] 

Sealed and delivered in presence of \ WnxiAM A. Yates, [Seal.] 

Temple Emmett, [ Thomas Cole, Jb. [Seal.] 



CVUl APFBNDIX. 

State of California, City and County of San Franoiaoo, m. 

Thomas Cole, Jr. and William A. Yates being duly sworn each for himself says that 
he is a freeholder resident in this State, and is worth the said snm of five thoosaDd 
dollars over and above all his jnst debts and liabilities, ezclasiye of property exempt 
from execuMon. • 

Sworn to before me this 30th day of June, 1858. ) WIlliak A. Tatbs, 

D. P. Bbixnap, > Thomas Cole, Jr., 

Deputy Clerk of the Probate Court ) 

[Indorsed.] 
The within bond and soretles, approved by me this 30th day of June, 1858. 

li C. Blakb, Probate Judge. 



INDEX TO APPENDIX. 



^>iidaM«kadHM_rf^^^ 



ACCOUNT, 8^ « fixhiWt." [!«). 6f form. 

petition that pcurtser accotmt 121 

order for citation 122 

attachment 123 

petition that admiaistrator account, 

146, 167 

order on same » . . . 147, 158 

citation to account . « . v 148 

revocation of letters . . . . w . » ^ • « » « 149 

Bame after commitment 150 

day of settlement appointed 151 

notice of Bettlemeut. 152 

appointment of guardian, on settle- 
ment of *. 153,159 

exceptions to account 154, 164 

appointment of auditor 155 

order to account. . . * 156 

settlement and allowance of 

166, 160, 165, 166. 167, 200 

JLGENT for absentees on partition, 180, 176 

ALLOWANCE TO FABIILY. S«I6 
" Family." 

. APPRAISBRS, appointment of 60 

certificate of ... ^ .,«.«,..»...... » 6l 

APPRAISEMOSNT *..., «1 

certificate, ^iffidaTits, etc. ......... 61 

ATTORNEY fof mindf lu^% 6tc., on 

probate • 19 

ATTACfiMlSNT for contempt, 

order of commitment 65 

warrant of commitment 66 

order to show cause 123 

AUDITOR, appointment of 155 

BOND of executor or administrator. . 38 
See « Securi^." 

of indemnity ^ . » 120 

on sale of real estate by guardian. . 201 



CfiRTIPIOAtB 0F1^R00:P tKaOJ-Mftlt. 
ofwiU 22,23 

aPTATION, on probate of will, to heirs, 

executors, etc ^ . . . » » 12 

order for same 11 

order for, on revoking probate. . 28, 29 
on application for revocation of let- 
ters 46 

ordet fot such citation ...»,. 45 

retuj^ of 46 

on applicatibn for further security. 51 

order for such Citation 50 

order for citation to partner of de* 

ceased to account ...... 122 

order for citation to administrator 

to render exhibit. ...... 143 

order for citation to administrator 

to render an accoimt. . . 147 
citation i«ued on such order* ^ . « . « 148 

CLAIMS. See«OreditdrB.^» 

COMMISSIONHaiS on partition 

181, 182, 183 

COMPROMISE of debt, 

t)etition for ^ . . * IfiB, 12t 

order for 12<, 128 

CONSENT of attorney for tninorheire 

and absentees 20 

of guardian ixd liUm ^ . 159 

that issues be tried by probate court 25 
to refer clum «.•«*,. 76 

CONVEYANCE OF REAL ES^TATB. 

petition for 181, 137 

order of publication 138 

notice and proof of publication. ... 134 
dect66 for conveyance, 132, 136, 136, 138 
On p&ttition, petition for 177 

CREDITORS, 
fonn of claim<^.». ..«•*«««**•• 76,77 



ex 



INDEX TO APPENDIX. 



CREDITORS, affidavit to and [no. of fobm. 
endorsement npon, ... 76, 77 
order to take original form from the 

files, etc 76 

consent to refer claim 78 

mle of such reference 79 

notice to creditors to present claims, 

etc 76 

order of publication of such notice 74 
petition of, against fraudulent con- 
veyance 129 

order on such petition 130 

petition of, to compel account .... 167 

DEBT, compromise of 126 to 128 

DECREE. See "Order." 

DEED of executor or administrator. . 119 

DISCHARGE of executor or adminis- 
trator, final 185 

DISTRIBUTION before close of ad- 
ministration. 

petition for 168 

order for hearing 169 

notice for jwsting 170 

proof of notice 170 

decree for 171 

DISTRIBUTION general, 

petition for 172 

order of publication 173 

decree of 174, 175. 176 

partition and 183, 184 

DIVIDEND, petition for payment of. . 162 
order for 161, 163, 156 

EMBEZZLEMENT, WASTE, etc. 

petition and complaint 64 

order for conunitment 65 

warrant of commitment 66 

EXCEPTIONS. See "Objections." 

EXHIBIT, form of 141 

petition to compel 142 

order for citation 143 

order to show cause 144 

exceptions to 145 

EXTENSION of administration 156 

FAMILY, petition for allowance to. . 67 

order for allowance to 68 to 73 

homestead 69, 73 

property set apart 69 

FRAUDULENT CONVEYANCE, 

petition to set aside 129 

order on such petition 130 

GUARDIAN, ad Utem, 

on application for sale 117 

on settlement of account 153, 159 



GUARDIAN, settlement of [no. of form. 

account 166, 200 

real estate sale, by . . 108, 197, 198. 199 
appointment of, for minor, 188, 191, 192 

petition for same 186, 187 

letters of guardiani^ip 189 

bond of 190 

minor ordered to nominate 193 

appointment of, for insane person. . 196 

petition for same 194 

notice to insane person 195 

on partition; appearance of 183 

order of sale by 199 

order allowing account of 166, 200 

bond of, on sale of real estate 201 

HOMESTEAD 69,73 

INVENTORY, with affidavit 61 

appraisement of 61 

revocation of letters for not filing. . 63 

order to show cause for same 62 

See " Appraisement" 

ISSUE, consent to try before probate 

court 25 

firamed and certified to district court, 

26,164 

LETTERS OP ADMINISTRATION, 

petition for 35, 39, 42, 44 

order for. ...... . 37, 41, 41 (A), 43, 47 

form of 48 

LETTERS ADMINISTRATION, WITH 
WILL ANNEXED. 

petition for 9 

order for 23, 32 

form of 33 

LETTERS ADMINISTRATION, SPE- 
CIAL. See "Special Ad- 
ministrator." 

LETTERS GUARDIANSHIP 189 

LETTERS TESTAMENTARY, 

petition for 1 to 10 

order for 21,27 

form of 34 

MmORS, etc., 

attorney for, on probate 19 

guardian for, on sale of real estate. 117 
guardian for, on settlement of ac- 
count 153, 169 

guardian for, on partition 183 

See " Guardian." 

NOTICE for publication of time for 

proving will, etc 13, 16 

of application for letters of admin- 
istration, to be posted, 17, 36 
to creditors, to be published 75 



INDEX TO APPENDIX. 



CXI 



NOTIGE, on application for [no. of fork. 
an order to make con- 
veyance, to be publiehed, 134 

of settlement of an account, to be 

published 162 

on application by heir, legatee, etc, 
for share to be given be- 
fore close of administra- 
tion, to be posted 170 

to parties interested, on application 

for partition, ordered. . . 179 

of sale of real estate 108 

NOTICE TO CREDITORS, form of. . 76 

order of publication 74 

proof of publication 76 

OBJECTIONS, to win 24,31 

to letters 81, 40 

to order of sale 110 

" confirmation 102, 106 

to exhibit 146 

to account 164 

ORDER of publication of time appoint- 
ed for probate H, 14, 16 

for production of will 18 

of probate 21, 23, 27, 69 

revoking probate 30 

certifying issues joined on prol»te . . 26 
for citation on revocation of pro- 
bate 28, 29 

for appointment of executor 21, 27 

" administrator, with 

the will annexed, 23, 32 
" attorney for minor 

heirs, etc 19 

appointing administrator and issu- 
ance of letters of admin- 
istration 

37, 41, 41(A), 43, 47 

for citation, as to sureties 60 

for new sureties on bond of adminis- 
trator 62, 65 

revoking letters of administration, 

47, 63, 66, 59, 63, 149, 150 

releasing surety on his request 64 

appointing special administrator. . . 67 

for appointment of appraisers . 60 

to show cause against revocation of 

letters.... 62, 80 

for warrant of commitment 65 

for allowance to the family, home- 
stead, etc 68 to 73 

of publication of notice to creditors, 74 
approving sale of personal proper- 
ty . . 84, 87, 96 

of sale of personal property 

86, 89, 90, 92, 96, 111 
to show cause on application for sale 

of personal property ... 94 

of real estate 98 

of sale of real estate 

99, in, 114, 116, 199 

confirming sale of real estate 

96, 101, 107, 116, 118 



ORDER, over-mling objeo- [no. of form. 
tions to confirmation of 
sale 106 

for re-fiAle of real estate 103, 109 

for hearing petition, and publication 

98, 113 

appointing guardian to represent mi- 
nors on the heariDg. . •. 117 

for citation to partner of deceased, 

to render account 122 

to show cause against attachment . 123 

that partner of deceased, have cer- 

taiD partnership effects . 124 

for leave to compromise a debt. 126, 128 

for executor to sue for certain prop- 
erty 130 

of publication, on application for de- 
cree to make conveyance 133 

to make conveyance. . 132, 136, 136, ]38 

for citation, to render exhibit 143 

to show cause, etc., on failure to ren- 
der exhibit 144 

for citation to compel an account. . 147 

of revocation of letters for failing to 

account 149 

of revocation of letters after commit- 
ment 160 

appointing day for settlement of ac- 
count filed 161 

' < guardian ad litem, on set- 
tlement of account, 153, 159 
" auditor of account 156 

to render an account 158 

allowing and settling account 

156, 165, 166, 167, 200 

for payment of debts 

156, 161, 163, 165, 167 

for hearing and giving notice there- 
of, on application for 
share by heir, etc 169 

giving to heir, etc., his share before 

close of administration, 171 

of publication on petition for final 

distribution 173 

or decree, of distribution 

174, 175, 176, 184, 186 

for hearing an application for a par- 
tition 179 

appointing agent for parties out of 

the State 180 

" commissioners of parti- 
tion 181 

of partition and final distribution . . 184 

of settlement of estate and discharge 

of executor 185 

of sale of real estate oy guardian • . 199 

allowing guardian's account 200 

PARTITION 177 

petition for 178 

order for hearing and notice 179 

appointment of agent 180 

appointment of commissioners. . . . 181 

warrant to commissionei's 182 

report of commisdiouers. 188 

order of partition 184 



xcu 



INDEX TO APPENDIX. 



PABTmON, partition and [ira or fobm. 
dittribtttion 188 

PARTNERSHIP, petition for account 121 

order for citation •• 122 

attachment •••••• ••••••••• 12o 

order that partner receive moneya. 124 

PERSONAL PROPERTY, see "sale of" 

PETITION, for probate of will and 
issuance of letters, 1, 2, 3, 5, 6, 7, S, 9, 10 

for prodnction of will • 7 

for allowance of foreign will 8, 9 

to establish a lost or destroyed will 10 
for letters of administration with 

will annexed... •• 9 

for letters of administration 

35,39,42,44 
for farther security on bond of ad- 
ministrator 49 

and complaint of embezzlement, . . 64 
for allowance for support of the 

family 67 

for sale of personal property 

81,85,88,91,93 
" *' perishable property.... 88 

" " real estate 97 

for new publication of notices. . ., 112 
that partner of deceased render an 

account ••• 121 

to compromise a debt 126, 127 

for order to make conTeyance of 

real estate 131, 137 

that administrator render an exhibit 142 

to compel an account • • • . 146, 157 

of executors for order to pay divi- 
dend 162 

for distribution to heir before close 

of administration • 168 

for final distribution 172 

for order to confirm partition made 

by agreement 177 

for order of partition ♦..».. 178 

PROBATE, petitions for - .. 1 to 10 

order of 21, 23,27,59 

order revoking • . • 80 

<Nrder and notice, publication. .11 to 17 

PROOF, certificate of, to probate. .22, 23 

of posting notice 17, 85, 108 

** publication of notice • 

16, 75, 108, 134,178 

PROVISION for family, see "Family" 

REAL ESTATE, see "Sale of" 

see "Conveyance of" 

RENUNCIATION ot trust, by Exe- 
cutor named in will .... 4 
of compensation named in will. . . 140 

* ■ 

RESIGNATION of Executor or Ad- 
ministrator «.... 189 



REVOCATION, [ko. of fokk. 

order revoking probate of will. ... 80 
petition for revocation of letters. . 44 
order for revocation of letters. . . . 

58, 56, 59, 68, 149, 150 
order to show cause 62, 80 

SALE OP PERSONAL PROPERTY 

petition for 81, 85, 88, 91, 93 

order for private sale. 90, 92 

report of private sale 83 

order of confirmation 84, 87, 96 

proof of notice of applicattou. ... 85 
order of sale . . . .86, 89, 90, 92, 95, 111 

perishable, petition for 88 

" orderfor 89 

order to show cause ••••... 94 

under direction of will 96 

SALE OF REAL ESTATE, 

petition for 97, 197 

order to show cauee, and publica- 
tion 98,113,198 

order of sale 99, 111, 114, 116, 199 

report of sale 100, 104, 108 

proofs of notice 108 

objections to order of. 110 

appointment of guardifltn 117 

offer of 10 per cent, advance 102 

order of re-sale 103, 109 

objections to confirmation 105 

order overruling objections 106 

confirmation of sale.. 101, 107, 115, 118 

petition for new publication 112 

bond of guardian on sale 201 

SPECIAL ADMINISTRATOR 

order for letters 67 

form of letters 58 

SUPPORT OF FAMILY, see "Family." 

SURETY on bond, 

petition for new surety 49 

order to show cause ^^c 50 

order for new surety 52, 55 

order releasing surety 54 

revocation of letters for failure to 

give new security. • . .53, 56 

TESTIMONY, on probate of a will. . 23 
certificate of , • . 22, ^ 

WARRANT of commitment. 66 

order for same. . • « . . . . 6^ 

of commissioners on partition . . • « , 18^ 

WASTE, Ac, see Embezzlement. 

WILL, petition for probate, etc. . . . 1 to 7 
petition for production of ....... . 7 

order for production of • 18 

petition for allowance of foreign 

will 8, 9 

OTder of probate of. 21, 23, 27 

certificate of proof 22, 28 

oljjeeUens to 24, 81 






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